Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1867-01-23

HoFF, Judges.
L. j. CRITCHFIELD, Esq, Reporter.
GENERAL DOCKET.
No. 42. John Carver, Executor of Johl
Miller, deceased, VS. Sarah Miller. E-rol
to the Common Pleas of Wayne County
Reserved in the District Court
BRISKERHoFF, j. Held
l. A parol pOst-nuptial agreement be
tween husband and wife, made in view O
voluntary separation, and fully executed
on the part of the husband, whereby, fol
q consideration which, in the light Of all
the circumstances of the parties at the
time the contract is made, is fair, reasona
bic and just, the wife relinquishes al
claim to a distributIve share of the hus
bands personal estate in case she survive.
him, will be upheld and enforced in equi.
ty; and the Intervention between them o.
trustee, is unnecessary.
2. But it is an essential element of the
foregoing proposition, that the terms o.
the contract shall be fair, reasonable and
just to the wife, in view of all the circum
stances of the parties at the time when ii
was made; and such contract can be made
available in pleading as a full defense to
an action by the wife for q distributive
share of her deceased husbands estate only
when accompanied by such avermeats as
show it to have been fair, reasonable and
just to her.
8. Where by the terms of post-nuptial
contract between husband and wife, made
in contemplation of separation Of the
parties, the husband agreed to pay the
wife a gross sum of money in hand; in
consideration of which she agreed to relin-
quish all claim to a distributive share oi
his present estate in case she survived
him; and the stipulated sum was paid and
received accordingly, and the parties ever
afterwards lived separate from each ether;
and after the death of the husband the
wife brings an action for the recovery of a
distributive share of his personal estate
under the statute held
That the facts above stated constitute,
p7ima fi1cie, q good defense in equity to
the action as to the amount so received BY
the wife under the contract.
Judgment reversed and cause remanded.
No. "a. William Stephenson and Mary
Ann Read VS.. Ezekiel Halnes and others.
Error to the Superior Court of Cincinnati.
WEIGH, j.
Where land is conveyed in fee, subject
to the payment of annual rents by the
grantee to the grantor, and the deed OF
conveyance reserves to the grantor the
right to re-enter and avoid the conveyance
upon default of payment, the grantOr has
lien upon the premises for the rent,
superior to that of . mortgage of the
grantee.
Judgment affirmed.
No. 35. Luther Johnston vs. Israel
Pierce. Error to the District Court Of
Madison county.
WHITE, j.
In a written contract between P. and j.,
it was declared that P. had, on the dav of
its date, sold 20 J. one hundred b ;ad of
good merchantable fat hogs, to be as fol-
lows: specifying wnat the hogs were re-
quired to weigh, and stimulating for their
delivery, at . future time, at a place
named.
Held:
l. That the contract on its face was not
for the sale of specific but of indeterminate
chattels.
2 That in an action against j. for re-
fusing to receive the hogs rendered by P.
in performance of the contract, parol evi-
dence, offered for the purpose of showing
that the hogs owned by P. at the date of
the contract formed part of the hundred
head contracted for, was properly rejected.
Judgment affirmed.
No. As. Jane A. NJ. Bissell, Adm'x, VS..
Samuel Jandon, ct al. Error to the Dis
trict Court of Lucas county.
DAY, J. Held:
l. The presumption of the payment of q
claim arising at common law from the
lapse Of time, may be rebutted by proof
that it remains due and unpaid, or by
proof that the debtor, within the period
required to raise such presumption, ac-
knowledged such claim to be an existing
liability.
2. Where q judgment is rendered in
another State upon claim secured by a
mortgage of the judgment debtor, and
where, in a subsequent suit to foreclose the
same within fifteen years from the date of
such claim, he consents to q decree order
ing the sale of the mortgaged premises,
and that the proceeds thereof may be
applied to discharge the amount in the de-
cree found to be due on the claim en-
braced in such judgment; such consent
constitutes an acknowledgment of an ex-
isting liability upon such judgment with
in the meaning of the 5th section of the
act of 1881, for the limitation of actions;
and an action in this State on such judg-
ment, will not be barred under that act
until the expiration of fifteen years from
the date of such acknowledgment.
Judgment of the District Court affirmed.
NJ TArn., NUflls,r,
& Co. Error to the District Court of
county.
SCOTT, q. ]. Held:
Where goods and chattels are levied
upon, by a Sheriff, under color of process
in attachment or execution, issued from q
court of record; and the same are claimed
by a person other thar the defendant
named in the pro less; a trial of such
right to the property, can be
mad, in the mode prescribed by Section
i26 of the code, only at the instance of
icch claimant, and can not be instituted
1t the sole instance of the Sheriff or officer
making the levy, and against the will of
he claimant.
judgment of the District Court, of the
Court of Common Pleas, and of the J US
ACt VI tic ctAC0s sCNOAdAAJ AChCLsCu-
No. 149. james A. Frazier ct al. VS.. S.
W. Seibem ct al. Error to the Superior
Court of Cincinnati; and
No. $50. Isaac W. Parker ct al. v.
anne. Error to the Superior Court of
and
No. 1876. Thomas w. Cornell '. Israel
8. Carter, Treasurer. Appeal. Reversed
n the District Court of Summit county
These three cases, involving the question
# taxing National Bank stock IN the
lands of the stockholders, are taken out
# their order for hearing and set down for
,ral argument on February 5th.
The Court called twenty-five cases be-
ginning with No. 76.
MOTION DOCKET.
No. u. William r. Morris, Jr., survi-
ring administrator V. Richard Il. Stone,
of Nelson B. Rairden.-I
Leave to file petition in error refused.
No. 81. SOlon Palmer Y. Keziah Pal
ner. Leave granted to file petition in
.rror.
No. 3S. John Arral V. Samuel McGill |
Passed for plaintiffs brief
No. SO. Cleveland, Painesvllle Sc Ash
abula r. r. Co. V. Benjamin Curran.-
Leave granted 70 docket reserved case.
le boniS non of Joel W. Wilson, deceased |
:. Lyman W. Moe and r Mel. Gibson.
Leave granted to file petition N error.
No. 43. B. S. Moody v. The State of |
ohio. Writ of error to Morgan County |
Common Pleas allowed.
No. 45. james A. Frazier ct al. v. S.