ular person, or to compensate by will, or discharge an obligation by will. See Phipps v. Hope, 16 Ohio St., 586, 595; Morris v. Clark, 7 Ohio Dec. Re., 564; Howard v. Brower, 37 Ohio St., 402; Shahan v. Swan, 48 Ohio St., 25; Hopple v. Hopple, 2 Circ. Dec., 59. And it seems to me that the same principle will apply to enable a member of a mutual order for a proper consideration to part absolutely with his right to change the beneficiary by surrendering that right to the one named if within the necessary degree of relationship. And if this case belongs to that category, there was no right to change.

There is a clear distinction between the above case and this one. In that case the husband and wife living together as one family, he supporting her, justifies the presumption that payments for her, or on her property, were gifts to her and gave him no right of inheritance, or of property, nor any equity. Such a theory is so foreign to the facts of this case as not to admit of argument. The motive of the nusband's payments in that case may have been the prospective benefit to himself, but if that were so. which is pure assumption, there is a difference between mere motive and a declared consideration. The interest of an intended donee under an unexecuted gift may supply a motive, but is not a consideration. Compare Sabin v. Grand Lodge A. O. U. W., 8 N. Y. Supp. 185, 187.

Suppose a mother (and I have known of such a case) puts her boy, on arriving at the age of eligibility, into such a society, at her own expense, she paying all the assessments, telling him that it is to be hers if she survives him, and that if he ever marries and desires insurance, he must not touch hers: Can he, under his apparent powers as a member, take from her that which exists only by her act and self-denial, and give it to another? Take the more frequently occurring case of a wife supporting the family, including a worthless husband, by her own efforts, and keeping up his membership in a mutual order out of her earnings, for the benefit of herself and children. Can he, at the last moment, take it from them at caprice? The statement of such a case negatives all presumption of gift. It is much stronger than building upon another's land in reliance on his promise to sell and convey to the improver, and is more like depositing monies in a bank in another's name, with his consent; for the entire existence of the product is due to the person paying, the member being a figure-head, contributing less than does the scare crow to the farmer who plows and waters the crop.

There is no accumulation of funds in the mutual orders. Each assessment or due paid is but the consideration for the continued currency of the certificate until the next call, giving no retrospective rights, but rather as a renewing contract, and lays no foundation for a claim to 'divide the fund in favor of one who has ceased paying.

Hence the fund in this case is wholly the wife's creation. Had she not kept up the dues and assessments, the policy would have been nonexistent years ago. Her fidelity to those unable to protect themselves, has saved it, and it cannot be diverted from them or appropriated. True, as between the lodge and the member, his wishes control, but as between him and others, he may part with his rights by estoppel or contract, and then the designation of a beneficiary is not a mere unexecuted gift, but a vested interest. The entire fund must go to the children.

Howard Douglass, for plaintiff.

Porter & Rendigs, for defendant.

Portage Common Pleas.

MECHANIC'S LIEN LAW.

[Portage Common Pleas, 1881.]

SECOND NAT. BANK V. ENTERPRISE EGG CO.

The act of 1889 providing that cognovit judgments have no priority over certain claims of operatives, although it affects debts in existence before its passage, does not impair the obligation of contracts, and is not invalid for want of constitutionality. It affects merely the remedies of different classes of creditors. On July 4, 1889, the Enterprise Egg Case Co., of Ravenna, Ohio, made an assignment for the benefit of creditors, to Bradford Howland, Esq., who failing to qualify as assignee, H. B. Dickinson was appointed trustee in his stead by the court.

On July 3d the Second National Bank of Ravenna, being the largest creditor, took judgment against the Company upon cognovit notes, for $2,018, and the same day levied upon all the personal property of the Company, both in Ravenna and in Cleveland, thus leaving nothing to come into the hands of the trustee. The Bank realized about $1,400 from the sale of this property.

At the time of the assignment the Company was indebted to thirtynine of its employees for labor, in amounts ranging from $1.50 to $20, the aggregate being $535.25, and they brought suit for their claims.

By the act of April 5, 1889, judgments on cognovit notes have no priority as against claims of operatives for labor performed within twelve months of the assignment to the amount of $300 each.

It was claimed by the Bank that inasmuch as the debt owing by the Company to it was in existence before the passage of the act, referred to above, the act was therefore retroactive in its nature, and in violation of art. 2, sec. 28 of the constitution of Ohio, which says: "The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts." Also, in violation of art. 1, sec. 10 of the federal constitution, which says, "no state shall pass any ex post facto law, or law impairing the obligation of contracts."

The case was tried to the court upon an agreed statement of facts. The plaintiffs claim that the act referred to was not in violation of either the state or federal constitution, because it does not affect the obligation of the contract between the Bank and the Company, but affects merely the remedy, the controversy being simply one between preferred and unpreferred creditors, and the contract remaining in statu quo.

This view of the plaintiffs was sustained by the court, who rendered a decision in their favor.

H. B. Dickinson and M. Stuart appeared for the plaintiffs.

Bradford Howland, for the defendants.

In 1882 Schmidt executed a lease to Ehler for a period of ten years, by the terms of which lease a lien was reserved upon the leasehold for unpaid rent. In 1887, at which time a large amount was due from Ehler for unpaid rent, Schmidt, by a general warranty deed, conveyed the property to Brown, who had knowledge of the existence of the claim of Schmidt, against Ehler. No reservation was made in the granting clause of the deed which in any way qualified the grant, but the warranty clause provided that the grantee would "warrant and defend against all claim or claims of all persons whomsoever, as fully as he, as such executor, is authorized to do, subject, however, to a lease to Elias Ehler." Held: That the lien of Schmidt, upon the leasehold for the unpaid rent was extinguished by his deed to Brown.

SMITH, J.

This is an action for the sale of a leasehold estate for unpaid rent due from Elias Ehler to the estate of D. K. Este from September 1, 1882, to September 13, 1887, being sixty months and thirteen days, at $30 per month, and amounting in all to the sum of $1,813.

The court below entered a judgment for the amount claimed, and ordered a sale of the leasehold estate to pay for the same; and the proceeding here is to reverse the decree for error in ordering a sale of the leasehold.

The bill of exceptions shows the following state of facts:

The plaintiff offered in evidence a lease made by F. A. Schmidt, executor and trustee of the estate of D. K. Este, deceased, to Elias Ehler, of the property described in the petition, with a rental of $360 a year in equal monthly payments of thirty ($30) dollars. The lease purports to have been executed on the first of March, 1882, by F. A. Schmidt, executor and trustee of the estate of D. K. Este, deceased, and to have been acknowledged on the third day of November, 1887.

It also appears that said Schmidt, executor, on the first day of December, 1887, by a general warranty deed, for a consideration of $12,500, transferred this property to Samuel S. Brown, conveying to him in the ordinary and well accepted language of such deeds, "all the estate, title and interest of the said grantor and of the said David K. Este, either in law or equity, of, in and to the said premises, together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof, to have and to hold the same to the only proper use of the said grantee, his heirs and assigns forever."

In the deed from Schmidt, executor, to Brown, no reservation is made in the granting clause which in any way qualifies the grant as aforesaid, but the warranty clause provides that he "will warrant and defend against all claim or claims of all persons whomsoever, as fully as he, as such executor, is authorized to do so. Subject, however, to a lease to Elias Ehler for the east three-fifths, and to McMahon, Porter & Co. for the west two-fifths of said premises, both of which leases expire March 1, 1892, subject also to all taxes and assessments now a lien on said premises.

The lease also contains the usual covenant that "for the said rents, taxes and assessments to be paid by said lessee, his heirs and assigns, a

Superior Court of Cincinnati.

2

lien is hereby reserved upon the premises hereby leased, and the interest of said lessee and assigns in and to the same, in favor of said lessee, his heirs and assigns, and preferable to all other liens thereupon whatsoever."

It also appears from the bill of exceptions that after this suit had been brought Elias Ehler, in consideration of one dollar, transferred all his interest in his lease to Samue! S. Brown

There are two principal questions presented by this record:

First-Was the lease from Schmidt, executor, to Ehler sufficient to create a lien on Ehler's leasehold for the rent due from September 1, 1882, to September 13, 1887?

Second-If such lease was sufficient to create such lien, was it extinguished by the deed from Schmidt, executor, to Brown?

The first question was not argued at the bar, and for that reason we are unwilling at this time to express an opinion in regard to it. The question arises from the following facts: Schmidt was not appointed executor until the twenty-fourth day of September, 1886, and did not probably execute this lease until the third day of November, 1887, at which time it was acknowledged, yet the lease is dated as of the first day of March, 1882, a period of more than four years before the appointment of Schmidt as executor. Now, while ordinarily it may be presumed that an official acts in the line of his duty, and that what Schmidt would undertake to do in the execution of a lease for the Este estate, he would have a right to do, yet it is a serious question whether such a power can be presumed as is exercised here, viz.: that of entering into a contract which dated back prior to his appointment, and to a period of time when Este himself was alive. But if such presumption cannot be made, another question would still remain, viz., can Brown take advantage of such a defense?

But these questions not having been argued at the bar, we prefer to pass them with a statement merely as to what they are, but without expressing any opinion upon them.

But, assuming such lease to be sufficient to create such a lien, was the lien extinguished by the deed from Schmidt, executor, to Brown?

It is contended by the defendant in error that the language in the warranty clause that Schmidt, executor, warrants and defends against all claims "subject, however, to a lease to Elias Ehler," is in effect a reservation by Schmidt of all his right, title and interest in such lease, including any lien he may have upon it for unpaid rent. But we are clearly of the opinion that this contention is unsound. The meaning of this language cannot, we think, be in doubt. As the title had been in a previous part of the deed conveyed as clear, free and unincumbered, and as the general warranty was that the grantor would warrant and defend the title against all claim or claims of all persons whomsoever, and as Elias Ehler had a lease upon said property, it was, of course, necessary for the grantor to except such lease in another part of the warranty clause; otherwise, he would have been liable in an action against him by his grantee for an interference with his title by reason of this lease. This is the plain meaning, we think, of this limitation in the warranty clause, and such construction of it makes the warranty clause harmonize with the granting clause. If, however, the construction is put upon it that defendant in error claims is the true one, it conflicts with the granting clause. The rule is well settled that an instrument must be so construed as to give effect, if possible, to all its parts.

2

Schmidt, Ex'r, v. Ehler et al.

It is insisted by the defendant, however, that aside from the language of the warranty clause, the circumstances surrounding the transfer are such that necessarily Schmidt still retains a lien upon this leasehold.

These circumstances, as they appear from the bill of exceptions are, that when Brown purchased of the plaintiff the premises described in the deed above; that he was aware that there were rents, taxes and assessments then unpaid under said lease to said Elias Ehler; that it also appears by an agreement in open court that said lease was on record; that the said claim for back rents was not assigned to said S. S. Brown, but was reserved to the plaintiff; and that the defendant S. S. Brown was informed at the time of the purchase, on December 1, 1887, that a suit was contemplated by said plaintiff for the sale of said leasehold estate in satisfaction of said rents.

Now the fact that Schmidt contemplated a suit against Ehler for the sale of the leasehold at the time Schmidt sold it to Brown, is unimportant, whether Brown knew of such intention or not. The deed which Schmidt executed is the contract, and it cannot be varied by parol evidence.

Of the other circumstances only one can have any bearing on this case. That is the circumstance that the lease from Schmidt to Ehler was on record and that Brown is therefore chargeable with knowledge of it. But did Brown's knowledge of the existence of such lease from Schmidt, executor, to Ehler have the effect of restricting in any manner or to any degree, the absolute conveyance by Schmidt, executor, to Brown, of all the right, title and interest in law and equity which Schmidt had in the property? We cannot see how it can have such an effect. The contention that it does arises from a misapplication of the principle that where one person conveys real estate to another, against which real estate a third person has a claim of which the purchaser had notice, that the property is taken by the purchaser subject to said third person's claim.

But this case is not a proper one for the application of this principle. For in this case it is not a third person who asserts a claim against the vendee, but the vendor himself, who, notwithstanding he has conveyed all his right, title and interest in law and equity in the property to the purchaser, nevertheless asserts that he may now claim, in opposition to the language of such grant, that he retains an interest in the property in the form of a lien for unpaid rent upon a leasehold of such property. We think the assertion of such an interest is in direct conflict with the grant under the deed.

But it is argued by the defendant in error that the effect of this deed is to convey the fee to Brown, but not the leasehold, and that Brown can have no possible interest in the fee which conflicts with the plaintiff's lien for the rent. But this position is unsound, even if it be assumed that the fee is conveyed and not the lease, because the existence of such a lien interferes with the free exercise by Brown of his estate in fee. Thus one of Brown's rights as the owner in fee is to sell said leasehold to pay for rent which comes due to him, but if a prior lien is allowed to be asserted, and upon a sale of the leasehold to be paid before Brown's claim, this right of Brown is seriously impaired, and it might be rendered entirely valueless. But we do not understand that an absolute conveyance, such as was here made, does not convey all the grantor's interest in the property --an estate for years as well as the fee. Any other construction of an absolute deed, such as this is, would, we are