was not cognizable in equity and therefore I bound to accept a conveyance subject to innot appealable; but this court, by journal cumbrances, and without release of inchoate entry, as appears in 96 Ohio St. 599, 118 N. dower of husband, and upon breach by failure E. 1083, reversed that court upon the author- of vendor to obtain release of dower and disity of Wagner v. Armstrong, supra.

charge of incumbrances, an action for damages [2] It is contended, however, that because will lie in vendee's favor. when it came to the hearing of the issues be- 3. Vendor and purchaser Om 351 (2)—Measure tween Hummer on his mechanic's lien and of damages for vendor's failure to give mar. the Parsonses, the owners of the property, no ketable title stated. contention was longer made as to the valid The measure of damages in such case is the ity of the lien, but only as to the agreement, difference between the market value of the and particularly as to the manner of pay- property at the time when the conveyance ment, the case was no longer a chancery case should have been made and the sale price stated and became a suit at law, and no appeal to in the contract. the Court of Appeals would lie. Whether a 4. Vendor and purchaser em 130(2)-Import of proceeding is an action in chancery or a suit "marketable title" stated. at law is to be determined from the pleadings A "marketable title" imports such ownerand from the issue made thereby. It is ele- ship as insures to the owner the peaceable enmentary that, where a court of equity ob- joyment and control of the land as against all tains jurisdiction of an action, it will retain others. it and administer full relief, legal or equi (Ed. Note.-For other definitions, see Words table, so far as it pertains to the transaction and Phrases, First and Second Series, Marketaor the subject-matter involved therein. The ble Title.] fact that subsequent to the joinder of issue by the pleadings in an action to foreclose Case Certified to Court of Appeals, Cuyaand marshal liens, determine priorities, and hoga County. subject the property to the satisfaction of the

Action by L. C. Lingham against one Mcliens according to their priority, some claims Carty. Judgment for plaintiff, and defendand some matters in dispute were disposed ant brought error to the Court of Appeals, of by admissions and stipulations of the par- which certified case to Supreme Court. Afties, would not serve to change the character firmed.-[By Editorial Staff.] of the proceeding from an action in chancery to a suit at law. Jurisdiction was fixed when

This cause comes to this court on error the issues were made. Gantz v. Gease, Guard- from the Court of Appeals of Cuyaboga ian, 82 Ohio St. 34, 91 N. E. 872.

county. The case was filed in the court of Judgment affirmed.

common pleas of that county August 16,

'1920, to recover damages for breach of conMARSHALL, C. J., and ROBINSON, tract. The contract alleged to have been JONES, DAY, ALLEN, and CONN, JJ., con- breached was a lease of a dwelling, which

lease contained an option of purchase in the following language:

"It is understood and agreed between the parties hereto that the party of the second part

has the privilege of purchasing the aforesaid MOCARTY v. LINGHAM. (No. 18493.)

property at any time during the continuance of (Supreme Court of Ohio. Dec. 23, 1924.)

this lease for the sum of seventy-five hundred

($7,500.00) dollars cash." (Syllabus by the Court.)

The petition described the real estate, al1. Vendor and purchaser em 130(1)-Purchas- leged the substance of the above-quoted par

er entitled to marketable title, where con- agraph, attached a copy of the lease to the tract silent thereon.

petition as an exhibit, and alleged that the Where a written contract of sale of real lessee went into possession, and performed estate is silent as to the character of the title all the covenants of the agreement, and that to be conveyed, the purchaser is entitled to de- prior to the expiration of the lease notimand a marketable title.

fied the lessor of his election to purchase, 2. Vendor and purchaser w 130(2), 343(3)—and of his being ready, willing and able to Vendor not required to accept married wo- purchase; that the lessor had failed to carman's conveyance with liens and incum- ry out the covenant relating to purchase and brances, and without release of husband's sale; and that for the purpose of defeating inchoate dower; vendor's failure to obtain the lessee from the enforcement of his oprelease of dower and discharge incum

tion the lessor had connived with her husbrances held to give vendee right of action.

band, and had induced the husband to re

fuse to release his dower interest in the Where such a contract is executed by a married woman, and her husband does not join property. It is further alleged that the lestherein, and there are liens and incumbrances sor had tendered a deed without release of by way of mortgage thereon, the vendee is not dower, but that the lessee had refused to

em Fır other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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(146 N.E.)
accept a conveyance which did not include, amination of the per curiam opinion of the
a release of the inchoate right of dower, and Court of Appeals of the Eighth district upon
therefore claimed damages in the sum of the first review, it clearly appears that the
$7,500. The lease was signed by Mrs. Mc-court decided that the petition contained a
Carty, and her husband did not join therein. good cause of action, and that the purchase
A demurrer was filed to the petition, and clause in the lease implied that Mrs. Mc-
the demurrer was sustained by the court of Carty should convey a merchantable title,
common pleas. The plaintiff not desiring free from incumbrance, with release of in-
to further plead, judgment was entered and choate dower of her husband, and that the
error prosecuted therefrom to the Court of sum of $7,500 should be payment in full for
Appeals, which court reversed the judgment such title. Upon the remand, the trial court
and remanded the cause, for further pro- in entering judgment rendered a short opin-
ceedings. Mrs. McCarty . did not prosecute ion, which was not incorporated into the
error to this court from that judgment of judgment entry, in which it clearly appears
reversal, but filed an answer denying that that it followed the instructions of the Court
she connived with her husband to induce of Appeals without the slightest deviation
him to refuse to release his dower, and al- therefrom. The trial court having followed
leging her willingness to carry out the terms the instructions of the Court of Appeals on
of the option and to make a conveyance of the first review, the Court of Appeals on the
the property without release of inchoate second review was limited to a considera-
dower. The answer further denied that tion of legal questions not covered by the
plaintiff was ready, willing, or able to car: mandate of the former review. The doc-
ry out the terms of the offer in said option trine of "the law of the case" clearly applies
contained. The parties went to trial before to this situation.
the court; a jury having been expressly That doctrine has received full considera-
waived. At the trial there was conflicting tion in another case 'decided by this court
evidence as to whether there was conni. this day, entitled Gohman v. City of St. Ber-
vance and fraud, and there was undisputed nard, 111 Ohio St. --, 146 N. E. 291. That
evidence that there was an incumbrance up- case differs from this only in the fact that
on the property in the sum of approximate the trial court after the first review did not
ly $2,600. It further appeared that the deed faithfully follow the principles declared by
tendered by Mrs. McCarty contained no cove- the reviewing court. This case therefore
pants of warranty. It was further shown presents a situation where the principle
that, after the refusal by Mr. McCarty to may be clearly and unequivocally applied.
join in a deed, thereby releasing his dower, Having found that the appellate court up-
the property was sold to other parties for on the first review laid down the principles
a larger sum of money, in which convey, which should govern a trial of the case, and
ance Mr. McCarty joined, releasing his dow- that the trial court faithfully followed the
er. No interrogatories were submitted to mandate of the reviewing court, and no other
the trial judge; no request was made for elements having been brought before this
findings of facts; and the entry of judg-court, it follows that the judgment of the
ment does not disclose the grounds of judg- appellate court on the second review, affirm-
ment, and contains no declaration upon the ing the judgment of the court of common
legal principles involved. The judgment pleas, must be affirmed by this court. Or-
was in the sum of $3,500, without interest. dinarily, it would not be necessary to give
Error being prosecuted to the Court of Ap- further consideration to the legal principles
peals, the judgment was affirmed.

involved. The Court of Appeals has, howThe second hearing in the Court of Ap-ever, under authority of section 6, art. IV, peals was by the Court of Appeals of the of the Ohio Constitution, certified this case Sixth district, sitting by designation, and in to this court for review and final determinaentering judgment that court certified the tion. It is therefore obligatory upon this cause to this court for review and final de court to consider the legal principles in. termination, on the ground that it was involved, and to determine which of the conapparent conflict with a judgment as an- flicting decisions of the Court of Appeals cornounced by the Court of Appeals of the rectly states the law. Fifth district, in the case of Edmund v. The Court of Appeals very properly certiBoring, 30 O. C. A, 238.

fied the cause to this court, because there Wilkin, Cross & Daoust, John H. Schultz, is a clear conflict between its decision and and Sydney A. Davies, all of Cleveland, for the decision of the Court of Appeals of the

Fifth appellate district, in the case of EdBulkley, Hauxhurst, Jamison & Sharp, mund v. Boring, 30 O. C. A. 238. That court and Francis X. Cull, all of Cleveland, for held that, where a contract for the sale of

real estate is signed by the owner, a wife,

but the husband does not join in the conMARSHALL, O. J.

We have before us tract, and the contract contains no mention the opinions of the Courts of Appeals on of a covenant against liens and incumbrancthe first and second review, and, upon ex- es, the purchaser will be held to have agreed

146 N.E.-5

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to take the land subject to such liens and in [2-4) As to what constitutes a marketable cumbrances as existed at the time the con- title no hard and fast rule can be declared to tract was executed, and the seller will be govern every state of facts which might be entitled to receive the full amount named in presented in the numerous controversies the agreement without deductions for liens which are likely to arise where such a title and incumbrances, and without abatement is implied in a sale contract drawn in genfor the value of the inchoate contingent eral terms, and each case is therefore sui right of dower of the husband. It only re-generis. Some attorneys are more technical mains to determine which decision correctly than others in advising their clients upon states the law.

the defects of greater or less importance to It is not questioned that Mrs. McCarty ex- be found in an abstract of title, and some ecuted the contract and that she had the purchasers are more timid than others, and capacity to do so, and no question is made the court can therefore do nothing more of the measure of damages applied by the than establish a very general rule. As a trial court. If there was a breach of the result of the numerous expressions of the contract, it necessarily follows that Ling-courts on this subject, it may be conservaham is entitled to recover such damages as tively stated that a marketable title is one flowed from the breach. If Mrs. McCarty which imports such ownership as insures to was only bound to deliver a deed subject to the owner the peaceable enjoyment and conliens and incumbrances, and was not bound trol of the land, as against all others. It has to obtain a release of the inchoate dower also been defined as one which is sufficient interest of her husband, and if she was to support or defend an action of ejectment. nevertheless entitled to receive the full pur- It should show a full and perfect right of chase price of $7,500 for such a deed, then possession in the rendor. It should appear by reason of her tender of such a deed there reasonably certain that the title will not be would be no breach. If, on the other hand, called in question in the future, so as to Lingham was entitled to have a marketable subject the purchaser to the hazard of litititle upon payment of $7,500, the contract gation with reference thereto. It must in has clearly been breached. The case of any event embrace the entire estate or inPeoples' Sav. Bank v. Parisette, 68 Ohio St. terest sold, and that free from the lien of 450, 67 N. E. 896, 96 Am. St. Rep. 672, has all burdens, charges, or incumbrances which been cited and quoted, but it throws no light present doubtful questions of law or fact. whatever upon this controversy, because the The defects complained of in the instant case court in that case only decided that there consist of a mortgage of $2,600 and the incould not be specific performance ordered choate dower interest of the husband, and against a husband who had not signed the we have no difficulty in reaching the concontract of sale, and who had not agreed to clusion that these are such as to render release his inchoate dower. The court in this title unmarketable. As authorities on that case did not decide that an action for the subject of the characteristics of a mardamages would not lie. The controversy ketable title, we cite Justice v. Button, 89 therefore turns upon a construction of the Neb. 367, 131 N. W. 736, 38 L. R. A. (N. S.) paragraph in the lease whereby an option 1; and Goodett v. Hansell, 66 Ala. 151. was given. That paragraph does not con Many cases could be cited to show that tain any provision for a warranty deed, nor a an action for damages can be maintained, release of inchoate dower, nor any agree- even though specific performance would not ment to discharge the premises from liens be decreed. In support of this principle we and incumbrances. If any of those provi-only cite the case of Riesz's Appeal, 73 Pa. sions are to become a part of the contract 485. This case is cited because it has been they must become such by implication. cited with approval in the case of Savings

[1] Many cases have been cited to aid in Bank v. Parisette, supra. the construction of a contract of sale, where, It is contended that there can be no reas in this contract, the kind of title to be covery in this case, because no tender was conveyed is left to implication. We will not made by the purchaser. An examination of attempt to analyze or quote these cases. this record discloses that no tender was They are not in entire harmony, but the necessary, because there was an anticipagreat weight of authority supports the claim tory breach. It therefore comes clearly of the purchaser that, where a sale of real within the rule of Geo. Wiedemann Brew! estate is made in general terms, without any ing Co. v. Maxwell, 78 Ohio St. 54, 84 N. E. stipulation as to the character of title 595. It is further contended that the purwhich the purchaser is to get, he is entitled chaser has not shown that he was ready, to demand that a marketable title shall be able, and willing to purchase. An examinagiven. Justice v. Button, S9 Neb. 367, 131 tion of the record discloses that the trial N. W. 736, 38 L. R. A. (N. S.) 1; McCord judge had abundant evidence upon which v. Massey, 155 III. 123, 39 N. E. 592; God- this element of the case could be predicated. din v. Vaughn's Ex'r, 55 Va. (14 Grat.) 102 ; The petition alleges connivance and fraud Keim v. Lindley (N. J. Ch.) 30 A. 1063 ; between the wife and her husband, whereby Goodlett v. Hansell, 66 Ala. 151.

the husband was induced to refuse to re

(146 N.E.) lease the contingent dower, and thereby to, clude "against the peace and dignity of the state defeat the consummation of the conveyance. of Ohio.” An indictment otherwise valid is The answer joins issue on this allegation. not invalidated by reason of a blank space being

Evidence was received upon this issue, but left between the typewritten matter in the inthe opinion of the trial judge does not deal thereon in a printed form, even though such

dictment and the concluding words printed with this feature. It will not therefore be assumed that it entered into his delibera- page from such typewritten matter, provided

concluding words may appear on a different tions.

such concluding words appear at the end of the In the case of People's Sav. Bank v. Pari- indictment. sette, supra, it was decided that specific performance would not be decreed against 3. Perjury Cm 23 Indictment alleging that the husband in the absence of fraud and

false statement was made by person solemnly connivance. It was not affirmatively de

sworn, held sufficient. clared that if connivance had been an ele. An indictment for perjury is sufficient which ment relief would have been granted. The alleges that a false statement was made by a instant case not seeking specific perform- person, "who then and there was solemnly ance, we have not considered that issue, be- affirmatively show that the person who made

sworn," even though such indictment does not ing of the opinion that it does not affect an

the alleged false statement received the adminaction for damages either way.

istration of oath as a witness. We have therefore reached the conclusion that the decision of the Court of Appeals of 4. Criminal law Om | 168(2)-Witnesses am221 the Fifth district, in Edmund v. Boring, su

-When husband waived statute prohibiting pra, is unsound, and that the declarations of privileged testimony, stated; admission of the Courts of Appeals of the Sixth and privileged testimony after waiver held not re-i Eighth districts, which are in perfect har.

versible error. mony with each other, declare the true rule. Where, in a prosecution for crime, the wife

It being established that the contract in of the defendant is called by the state to testithis instance was a fair one, that the parties fy, and gives testimony material to the indictwere competent to make it, and that the communication made by the husband to the

ment, which testimony consists in part of a price named in the purchase clause was $7,- wife during coverture, not in the known pres500, and there being evidence to the effectence or hearing of a third person competent to that the property advanced in value after be a witness, and no objection is made by the the execution of the lease, and the court defendant or his counsel thereto, and no motion having found that the fair market value in to exclude the testimony, and no request to in1920 was $11.000, the judgment rendered in struct the jury not to consider such testimony, the sum of $3,500 was a logical deduction and the attention of the trial court is not called from that evidence.

thereto at any time during the trial, the de

fendant will be held to have waived the proviJudgment affirmed.

sions of section 13659, General Code, in his ROBINSON, JONES, MATTHIAS, DAY, behalf, and the admission of such testimony un

der such circumstances will not constitute reALLEN, and CONN, JJ., coneur.

versible error.


5. Perjury en 6–Proceedings, under order to
show cause, "proceeding” within statute,

Where in a divorce and alimony action, the
RUCH V. STATE. (No. 18643.)

court upon the petition of the wife grants an (Supreme Court of Ohio. Dec. 23, 1924.)

order restraining the husband from disposing

of his property during the pendency of the ac(Syllabus by the Court.)

tion, and upon trial of the cause awards the 1. Indictment and information om 34 (2)

same property to the wife as alimony, but, be

fore the decree is spread upon the journal, rePrinted indorsement on indictment subscribed ceives information that the husband has disby foreman of grand jury is sufficient.

posed of the property in disobedience of the Section 13571, General Code, provides that, restraining order, and thereupon the husband when an indictment is found the foreman of the is cited and summoned to show cause why an grand jury shall indorse on such indictment the attachment should not issue against him, and words "A true bill,” and subscribe his name as responds to such summons, and without objecforeman. It is a sufficient compliance with that tion receives the administration of oath as a statutory requirement that the indictment have witness, and though represented by counsel the words "A true bill” printed thereon, and makes no objection to testifying, and does in that the foreman of the grand jury subscribe fact give testimony, all of which is in open his name thereto as foreman.

court, and the court having jurisdiction of the 2. Indictment and information om 32(3)-In- subject matter of the action, it will be held to dictment not invalidated by blank space be constitute a “proceeding" within the meaning of tween typewritten matter and required con

section 13587, General Code. cluding words.

[Ed. Note.-For other definitions, see Words Section 20, article IV, of the Constitution and Phrases, First and Second Series, Proof Ohio, provides that all indictments shall con- I ceeding.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexer

Error to Court of Appeals, Ashland County. , sheriff of the county to be served upon Ruch, Herman G. Ruch was convicted of per- fore the judge of the court of common pleas

commanding him to appear forthwith bejury, and on error to the Court of Appeals the judgment was affirmed, and defendant to give testimony, and to show cause why

an attachment should not be issued against brings error. Affirmed.--[By Editorial Staff.]

him for contempt. This writ was duly servPlaintiff in error was convicted of per- ed upon Ruch, and in obedience thereto he jury in the court of common pleas of Ash- appeared before the court and gave testiland county, the indictment being drawn un mony. In this hearing, and as a part of der section 12842, General Code, and omit- his testimony, all of which was given under ting the formal parts, in the following lan- oath duly administered by the clerk, Ruch guage:

presented an alleged receipt for the sale of "That Herman G. Ruch, late of said county, the personal property, which receipt was on the 12th day of January in the year of our dated November 8, 1923, this being prior to Lord one thousand nine hundred and twenty- the service of the injunction. He further four, at the county of Ashland aforesaid, in a testified that the goods were in fact sold to certain proceeding for contempt of court for the Rollie Maxheimer for the sum of $75, and violation of an order of the common pleas. court that the sale took place prior to November of Ashland county, Ohio, in a certain divorce

10. and alimony action then pending in the court of

Ruch did not at that time or at any common pleas in said county, wherein Helen time question the regularity of the contempt Ruch was plaintiff, and Herman G. Ruch was proceedings, did not object to testifying, defendant, did appear in said court, which was , did not except to any action of the court in then and there open for the transaction of busi- that proceeding, and did not prosecute error ness, and then and there was solemnly sworn, from the judgment rendered. It was claimed in said open court by Cloyd M. Scott, clerk that this testimony was false, and the indictof said court, who then and there was duly em

ment for perjury followed. powered and authorized by law, as such clerk, to administer said oath, and so being sworn

Counsel for defendant urged many techthen and there in said cause and in a matter nical objections by plea in abatement, momaterial thereto, did corruptly and willfully tion to quash, and demurrer, all of which obdepose and declare certain matters then and jections were overruled. At the trial many there to be fact, to wit, that the date of a other technical objections were urged. It certain receipt marked 'Plaintiff's Exhibit 1'

was claimed that the state failed to prove was correct, that he sold certain household fur; that any contempt proceeding was in fact niture to Rollie Maxheimer for $75; that said furniture was sold before the 10th day of No- pending at the time the alleged false testivember, whereas in truth and in fact the said mony was given; that the defendant was an Herman G. Ruch did not sell said furniture to involuntary witness; that his wife testified the said Rollie Maxheimer on said date or for against him contrary to the provisions of said sum of money as set forth in said receipt, section 13659, General Code; and that in. and whereas said receipt was fraudulently and competent testimony was admitted on becorruptly executed at a later date for the pur- half of the state, and competent evidence pose of defrauding the said Helen Ruch, the offered by the defendant was rejected. It said Herman G. Ruch then and there well know

was also claimed that the corpus delicti was ing the said matters so as aforesaid by him deposed and declared to be true, then and there to not proved, and that the defendant was not he false."

convicted by that degree of proof required

in criminal cases. The jury returned a verRuch had theretofore been the defend- dict of guilty, judgment was entered thereant in a divorce and alimony suit in which on, and upon error prosecuted to the Court the petition prayed and the court granted of Appeals the judgment was affirmed. The a temporary injunction to restrain Ruch cause has been admitted to this court, mofrom disposing of his property until final tion for leave to file petition in error hav. hearing of the cause. The order of injunc-ing been sustained. tion was made by the court, and a copy of

Walter R. East, of Akron, for plaintiff in the petition and summons were served upon Ruch personally on November 13, 1923. The

J. F. Henderson, Pros. Atty., of Ashland, divorce case was heard January 5, 1924, and C. C. Crabbe, Atty. Gen., for the State. and on the same date the court announced that judgment would be rendered for plaintiff, the wife, and that she would also be MARSHALL, C. J. [1] The grounds set awarded the household goods referred to and forth in the plea in abatement are no longer covered by the injunction. The journal en- urged in this court, but two of the grounds try was prepared, but before being filed and set forth in the motion to quash are urged. journalized it was found that Ruch had re The first of these contends that the indict. moved the household goods and placed them ment is insufficient because the foreman of beyond the process of the court, and there- the grand jury did not indorse the indict. upon a rule for contempt was made by the ment "A true bill.” The indictment was the court and a writ issued under the signature usual printed form, which has those words of the clerk and seal of the court to the printed upon the back, and the foreman


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