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(39 Ind. A. 1)
SUPREME LODGE K. P. V. ANDREWS et

al. (No. 5,407.)1
(Appellate Court of Indiana, Division No. 2.

June 28, 1906.)
On rehearing. Denied.
For former opinion, see 77 N. E. 361.

are indicated by and are likely to follow a certain pulse rate at a certain age, conditions shown to have existed in the applicant, and directly rebutting the charge made in the complaint. The conclusion reached in the prevailing opinion ignores the rules of order.

The petition for a rehearing should be granted, and the judgment of the trial court reversed.

PER CURIAM. Rehearing denied.

COMSTOCK, P. J. (dissenting). The petition for a rehearing in this cause emphasizes

(74 Oh. St. 295) the proposition that where a voluntary socie

GILL et al. v. FLETCHER. ty proceeds regularly in accordance with its (Supreme Court of Ohio. June 12, 1906.) own rules, they not being contrary to public 1. DEED-CONSTRUCTION-RESERVATION. policy and the laws of the land and its pro

Whether the language used in a deed cedure not being “mala fides," such rules and

creates a reservation or exception from the

grant depends upon the intention of the parproceedings cannot be abrogated by a policy ties as evinced by a construction of the whole holder or set aside by the courts. Croak v. instrument in the light of the circumstances High Court, etc., 162 Ill. 298, 44 N. E. 525.

of each case. This doctrine is ignored in the original prevail

[Ed. Note.:-For cases in point, see vol. 16,

Cent. Dig. Deeds, $$ 455, 456.] ing opinion. Mr. Andrews, as a member of

2. MINES AND MINERALS-DEEDS-EXCEPTION the appellant society, had a right to transfer

-RESERVATION OF MINERALS. to a membership of the fourth class, limited

Where the owner of a fee-simple estate in by the rules and laws of the order. His right lands conveys the lands to another in fee simple, was qualified. It depended upon the approv

reserving one-half of the mineral which may

thereafter be found on said land and declaring al of his application by the medical examiner

that the grantee, his heirs and assigns shall in chief. As a member of this mutual benev have and hold the land and its appurtenances, olent society, he approved and assented to “the half of the mineral only excepted,” such the qualification. For many months, he had

conveyance creates an exception to the grant,

leaving in the grantor and his heirs a fee-simple a right, unqualified, to be transferred from

estate in one-half of the mineral separate and the second to the fourth class free of charge distinct from the estate in the surface and and regardless of age. During that time he the other half of the mineral conveyed to the did not file his application for a transfer, and

grantee.

[Ed. Note.For cases in point, see vol. 34, a change in the laws placed a restriction upon

Cent Dig. Mines and Minerals, § 154.] this right, which appellees ask shall be re

3. ADVERSE POSSESSION-MINERAL LANDS. moved. The writer is of the opinion that the

Under such a deed the subsurface rights courts have no right to prescribe rules for will not be lost by nonuser, nor by constructive the government of society, in opposition to

possession under color of recorded deeds which

are silent as to the excepted mining rights; but its own laws. The right of the applicant to

to bar such rights under the statute of limitatransfer depended upon more than his appli tions the possession must be actual, open, nocation. The application required the approv torious, continuous, exclusive, and adverse, al of the medical examiner in chief. It did shown by overt acts of unequivocal character

which clearly indicate an assertion of ownernot receive this approval for reasons stated,

ship of the premises to the exclusion of the both by indorsement on the application and rights of the real owner. thé oral testimony of the medical examiner. (Syllabus by the Court.) The right to membership is determined by

Error to the Circuit Court, Ottawa County. the laws of the order; the right and manner of change from one class to another is deter

Action by Gill and others against James mined by the same laws and rules. The

Fletcher. Judgment for defendant was af

firmed in the circuit court, and plaintiffs rules do not say that the applicant shall be transferred upon the approval of the local

bring error. Reversed, and judgment ren

dered for plaintiffs. medical examiner, nor that the opinion of the medical examiner shall be set aside by the This action was begun in the court of comopinion of other medical men, although they mon pleas of Ottawa county by the plaintiffs may be of equal learning and experience, in error, who were plaintiffs below, to quiet but only upon the conditions to which, as a title to certain lands, which are now a part member of the order, he has subscribed. of said Ottawa county; and also to restrain The complaint charges that the application the defendant from interfering in any manwas rejected solely because of the advanced ner with the right of plaintiffs in the premiage of the applicant, arbitrarily and without ses and from preventing the plaintiffs from legitimate excuse. If the testimony of the going upon the premises and removing onemedical examiner in chief, or of Dr. Mc half of the gypsum, or plaster, therefrom, and Connell, another medical examiner, are to for other relief. The case was tried in the be given any weight, these grounds are not court of common pleas and also in the cironly not sustained by any evidence, but are cuit court on appeal and in both courts the positively disproved. Their testimony is judgment was in favor of the defendant. uncontradicted as to physical infirmities that The circuit court made findings of fact sep78 N.E.--28

1 Transfer denied.

arate from its conclusions of law, from which er, who holds by mesne conveyances. None findings it appears that on the 5th of Octo of the deeds from A. C. Payne down to the ber, 1838, one Joseph Gill and his wife, re defendant herein contains any restriction, siding in the county of Jefferson, Ohio, con limitation, reservation or exception whatever. veyed the lands in question to one Jesse The defendant, Fletcher, and those under Payne, who resided in Berkley county, Vir whom he claims, successively went into posginia. The lands were described as the east session of the premises described in the deed half of section 9, etc., "joining a fraction to Fletcher by virtue of their respective deeds, al school section on the Sandusky Bay near and for more than 35 years next prior to the Lockwood's Plaster Beds, and containing 317 commencement of this action they have been acres more or less; the said Joseph Gill re in actual, notorious, and uninterrupted possesserving the one-half of the plaster or the sion of the premises, and have cleared, cultiprofits thereof which may hereafter be found vated, used, and improved the same for on said land. To have and to hold the same agricultural purposes only under claim of hereby conveyed with all and singular the ownership of the same and every right, title, premises and every part and parcel thereof and interest therein by virtue of the said with every of the appurtenances (the half deeds. There is no affirmative evidence that of plaster as above described only excepted) Joseph Gill or John W. Gill, or any of the unto the said Jesse Payne, his heirs and as plaintiffs, had any actual knowledge of the signs forever.” The grantor, Joseph Gill, claim of exclusive ownership by the defendwas born in February, 1763, and the grantee, ant and his predecessors in title, prior to the Jesse Payne, was born in 1776, and they were year 1902. On the 5th day of October, 1838, acquainted with each other at the time of the date of the conveyance by Joseph Gill to this conveyance. The said Joseph Gill died Jesse Payne, gypsum, otherwise called plasintestate as to the property which is the ter, was not known to exist upon the land subject of this action, and it descended to described in the deed, but a large deposit of his son, John W. Gill, who died intestate plaster was at that time known to exist about about 1872, leaving the plaintiffs herein, who one and one-half miles east of the premises are all nonresidents of the state of Ohio, his described in the deed, which deposit was only heirs at law. In the lifetime of Jesse known as Lockwood's Plaster Beds, as menPayne he entered into a written agreement

tioned in the deed. Those deposits of plaster with his son, A. C. Payne, whereby he agreed existed in certain strata, the first or upper to convey to the latter 9712 acres of the land stratum being near the surface and broken described in the deed aforesaid, and after and not continuous, Between the different wards such proceedings were had in the court strata of plaster there were layers of limeof common pleas of Ottawa county, that on stone. On the 5th of October, 1838. and up to or about the 20th of February, 1836, Amos about the year 1864, only the upper stratum Payne, as executor of the last will of Jesse was known to exist, and it was obtained by Payne, was authorized and directed to exe quarrying or stripping the earth therefrom, cute this written agreement by a deed con and was taken in the form of bowlders or veying the said 9712 acres to A. C. Payne, chunks ranging in size from the size of one's his heirs and assigns forever; which the exe fist to many tons in weight, and after 1864 cutor accordingly did convey. Neither the a lower stratum was found from which the agreement between Jesse Payne and A. C. gypsum was obtained by stripping the earth Payne, nor the deed from the executor of from the same, and then replacing the earth Jesse Payne to A. C. Payne, contained any after the gypsum had been taken out. About restriction, limitation, reservation, or excep the year 1900, other valuable deposits of tion whatever, but by its terms purported to con gypsum or plaster were found to exist about vey to A. C. Payne in fee simple every right one-half mile west from the premises in posand interest in the premises described. That session of the defendant, which gypsum existdeed was filed for record on the 12th of Oc ed wholly beneath the surface of the earth, tober, 1866, and was duly recorded in the and since that time extensive operations record of deeds of Ottawa county, and A. C. for mining have been conducted west and Payne went into possession of the premises east of the premises of the defendant. But under the claim of title described and con after the gypsum has been removed from veyed by said deed, without knowledge of between the strata of limestone there have any claim of the plaintiffs or those under been some cavings in of the earth and the whom they claim. The deed from Joseph surface has been to some extent interfered Gill to Jesse Payne, however, was recorded with for farming purposes. No plaster has on the 3d day of December, 1838, in the rec ever been actually found or taken from the ord of deeds of Erie county, and the same surface, or from beneath the surface of the was not recorded, nor a transcript of the defendant Fletcher's land, nor has there been records of Erie county relating to the premi any mining or exploration for gypsum conses described in the deed was not recorded ducted on or under said premises. But the in Ottawa county before the year 1888. The court finds from the evidence that gypsum, deed from the executor of Jesse Payne to A. or plaster, exists thereunder and probably in C. Payne covers the land which is now held quantities that would make it profitable to by the defendant in this action, James Fletch mine the same. This proceeding in error is

prosecuted to reverse the judgment of the This language cannot be overlooked nor circuit court.

thrown out of the instrument. The parties Scott Stahl and S. P. Alexander, for plain

meant something in using it and it can only tiffs in error. Wm. C. Wierman, for defend

mean that the grantor excepted out of the ant in error.

estate granted and retained in himself the

fee simple, which he already had, in the DAVIS, J. (after stating the facts). The one-half of the plaster. It cannot be mainplaintiffs in error make two contentions : tained that the plaster was not in esse at First, that as to the one-half of the gypsum the time of the conveyance. With good reaunderlying the land there was a severance son it was at that time believed to exist, of the title in the deed of Joseph Gill to although it had not been “found”; and hence Jesse Payne so that the grantor withheld to the reservation or exception.

or exception. The court himself a fee simple in one-half of the miner- found that it exists now and the necessary al estate and conveyed to the grantee all of

inference is that it existed then. The case the other half of the mineral and all other is not at all like cases in which an estate rights in the land; second, that the plaintiffs is granted and at the same time some new in error have not lost their rights in the right or privilege is reserved out of it to mineral through adverse possession by the the grantor, as, for example, a right of way defendant and his grantors. It is familiar or other easement. law, already recognized by this court in It is conceded that if the language of the Burgner v. Humphrey, 41 Ohio St. 340 and deed constitutes an exception, words of in352, that the surface of the land and the heritance are not necessary to transmit the minerals underlying it may belong to differ- estate to the plaintiffs; but the use of the ent owners. The doctrine is thus stated, with word "reserve" or "reserving" or of other citations of a great number of authorities: words of similar import, does not necessarily "It is well settled that a mine may be severed create a technical reservation. The deed from the surface, the surface being held in may, nevertheless, operate as an exception. fee by one person and the mine by another. The construction of the deed is to be drawn The ownership of a mine after severance is from the circumstances of each case and from to all intents and purposes the same as the

all the words of the instrument, the object ownership of land, and is attended with all being to ascertain and give effect to the inthe attributes and incidents peculiar thereto.

tention of the parties. In this case the words The mine itself may, in turn, be divided are both “reserve" and "except"; and it longitudinally and each stratum become the seems clear to us that not only the language subject of a grant; the mine thus becoming employed but also the facts found by the the property of as many owners as there are circuit court justify the conclusion that it different strata. Severance may be accomp

was not the intention of the grantor to relished by a conveyance of the mines and min- serve to himself merely an immediate privierals only, or by a conveyance of the land lege which should expire with his own life, with a reservation or exception as to the

but that it was the intention of the parties mines and minerals.” 20 Am. & Eng. Ency.

to except from the grant an absolute and inLaw (2d. Ed.), 771-773.

heritable estate in the one-half of the plaster The defendant in the case at bar insists

beneath the surface of the land conveyed. upon the technical distinction between a re- Hay's Lessee v. Storrs, Wright (Ohio) 711; servation and an exception, maintaining that, Sloan v. Furnace Co., 29 Ohio St. 568; Coal since the language of the deed is: “The Creek Mining Co. v. Heck, 15 Tenn. 497; said Joseph Gill reserves the half of the plas- State v. Wilson, 42 Me. 9; Bridger v. Pierson, ter, etc., which may hereafter be found on 45 N. Y. 601; Wood v. Boyd, 145 Mass. 176, said land" it should be construed as a res- 13 N. E. 476; Whitaker v. Brown, 46 Pa. 197. ervation and not an exception; because the A separate estate in one-half of the mineral express language is that of a reservation and having been excepted by the grantor, it bebecause it is a reservation of something comes a material question whether the rights which was not known to be in esse at the of the plaintiffs are lost to them by adverse time of the conveyance, as shown by the possession. It is not disputed that title to words, “which may hereafter be found.” Up- a mine which has been severed from the on the theory that the deed operated only as title to the surface may be acquired by ada reservation to the grantor of something verse possession; but this can take place only out of the estate granted, it is urged that when the possession is actual, continuous, whatever rights the grantor reserved to him- open, notorious and hostile. It cannot be acself expired with his life, because there are complished by secret trespass upon the ownno words of inheritance in the reservation. er's rights and it has been held in many The weakness of this theory lies in the fact cases that, where there has been a severthat it does not give full force and effect ance of estates, neither the owner of the to all the words of the deed. Following and surface nor the owner of the mine can claim in immediate connection with the language the other estate merely by force of the posabove quoted these words occur, “To have session of his own estate. Nor does the mine and to hold

the half of the plaster owner lose his rights by mere nonuser. His as above described only excepted

title can be defeated only by acts which actu

ally take the mineral out of his possession. We cite some of the cases which support the foregoing propositions. Smith v. Lloyd, 9 Exch. 562; Arnold v. Stevens, 24 Pick. (Mass.) 106, 35 Am. Dec. 305; Caldwell v. Copeland, 37 Pa. 427, 78 Am. Dec. 436; Armstrong v. Caldwell, 53 Pa. 284; Kingsley v. Coal & Iron Co., 144 Pa. 613, 23 Atl. 250 ; Hummer v. Coal & Iron Co., 160 Pa. 483, 28 Atl. 853; Algonquin Coal Co. v. Coal & Iron Co., 162 Pa. 114, 29 Atl. 402; Huss V. Jacobs, 210 Pa. 145, 59 Atl. 991; Marvin v. Iron Mining Co., 55 N. Y. 538, 14 Am. Rep. 322.

In this connection it is proper to direct attention to the principle that a tenant in common cannot assert title by adverse possession against his co-tenant, unless he shows a definite and continuous assertion of adverse right by overt acts of unequivocal character clearly indicating an assertion of ownership of the premises to the exclusion of the right of the co-tenant. This principle has been so generally recognized by the courts that it may be said to be elementary. It has been distinctly declared by this court in Youngs v. Heffner, 36 Ohio St. 232. Therefore, when by the exception and severance of title in the mineral by the deed, the grantor, Gill, and the grantee, Payne, became tenants in common in the mineral, each owning onehalf, neither the grantee nor those holding under him could acquire title through the statute of limitations as against the plaintiffs unless they are able to show such open and unequivocally adverse possession of the mineral rights as would put the plaintiffs and their ancestors upon notice. Actual possession of the surface and constructive possession of the mineral under color of deeds will not be sufficient. It must be an actual interference with the seisin of plaintiffs with denial of their title. The record of deeds from Payne's executor, and of mesne conveyances down to the defendant, which deeds convey the full title with no exceptions or reservations, cannot operate as adverse possession, nor as notice of an adverse claim. The deeds being silent as to the mining right in Gill and his heirs, which had been severed by the deed from Gill to Payne, they could only be construed as conveying only such title as Payne, or his grantees, had. As to the severed mining estate, a distinct title must be asserted and established. Kincaid v. McGowan, 88 Ky. 92, 4 S. W. 802, 13 L. R. A. 289, and cases cited above. There was no open, unequivocal, exclusive, and adverse possession in this case; and to hold otherwise, in our opinion, would be inconsistent with the findings of fact, and with the line of decisions which we have cited.

Judgment reversed, and judgment for plaintiffs in error.

(74 Oh. St. 307) ADVANCE THRESHIER CO. V. HOGAN

et al. (Supreme Court of Ohio. June 12, 1906.) 1. MORTGAGES - FORECLOSURE— APPLICATION OF PROCEEDS.

Where parties to a mortgage given to secure the payment of several notes maturing at different times have provided in the instrument that the mortgagee may elect as to the application of payments in case the proceeds of a sale of the mortgaged property are insufficient to satisfy the entire debt, the court upon foreclosure will, as between mortgagor and mortgagee, order application of money arising from sale in conformity with such election if made in proper time.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, $8 1629, 1630.] 2. SAME TIME FOR ELECTION.

Such election is not too late if made by proper demand prior to the trial. 3. PRINCIPAL AND SURETY NOTICE TO SURETY.

Where two of the notes so secured contain a clause that they, with others, are secured by mortgage given by the mortgagor to the creditor, and are signed by a third party as surety for the debtor, such surety will be held, in the absence of circumstances showing the contrary, to have had notice of the provisions of the mortgage respecting the application of payments, and to have contracted with reference thereto. 4. SAME-REMEDIES OF SURETY-APPLICATION OF PAYMENT.

The primary equity growing out of the relation of creditor, debtor and surety, is that the creditor be paid what is due him; that he does not lose this equity as against the surety except by misconduct to the latter's prejudice. So that, when the creditor in the original contract has received a mortgage covering the entire debt, and a personal guaranty on a part of it, the presumption is, in the absence of circumstances showing the contrary, that he has taken the personal guaranty as additional protection for his debt. This presumption is strengthened where it appears that the creditor, at the inception of the debt guarantied by the surety, refused to part with the property, the consideration for the notes signed by the surety, without such personal security. The surety has, in case of sale resulting in a sum insufficient to satisfy the entire debt, no standing to demand that the proceeds be applied pro rata upon the notes upon which he is surety. A fortiori is this the case where the mortgage contains a clause to the effect that where any of the notes are guarantied by a third party such party shall have no rights under the mortgage unless, the same is assigned to him, and that on sale the proceeds shall be first applied on notes not so guarantied until the same are fully paid.

(Syllabus by the Court.)
Error to Circuit Court, Logan County.

Action by Advance Thresher Company against D. S. Hogan and others. From a judgment in favor of defendant J. Lincoln Clayton, plaintiff brings error. Reversed.

John R. Cassidy, for plaintiff in error. A. Jay Miller, for defendant in error.

SPEAR, J. An action was commenced Janisry 23, 1904, by the Advance Thresher Company against Dell S. Hogan, W. R. Hogan, and J. Lincoln Clayton, in the common pleas of Logan, to obtain judgment against the Hogans upon 10 promissory notes

SHAUCK, C. J., and PRICE, CREW, and SUMMERS, JJ., concur.

of various dates and amounts, maturing at sale of the property covered the proceeds different times, and aggregating $1,962, and should be first applied on the notes secured to obtain foreclosure of a chattel mortgage thereby other than those on which Clayton executed by the Hogans August 29, 1903, was surety until such notes not so secured and given to secure payment of the notes, were fully paid. the property covered being a grain separator, The circuit court, on trial, sustained a dea compound steam traction engine, a band cut- murrer to the first paragraph of the reply, ter, and feeder, pneumatic straw stacker, and and overruled a demurrer to the second parother items of personal property including agraph. As part of its evidence, and in supsome live stock. The traction engine, with at- port of the second paragraph of the reply, tachments, was sold by the company to the the plaintiff introduced its chattel mortgage Hogans contemporaneous with the execution which contains the following stipulation: of the mortgage and the delivery of three "And the proceeds of sale shall be applied, of the notes, each for $100, two of which after paying all costs, fees, and expenses were signed also by the defendant in error, incurred by the mortgagee, its agents, or Clayton. Each of these notes contained a assigns in that behalf, to the payment of any statement to the effect that it, with others, or all of said notes; and if not sufficient to was secured by chattel mortgage of even pay all of said notes, then to be applied date, and that failure to pay the note or the on either of said notes or divide the proothers so secured when due made that note ceeds among the several notes in such proand all others so secured immediately due portions as it may elect at the option of the at the option of the holder. The mortgage party of the second part without notice, had a similar provision to the effect that in whether said notes are due or not due by the case of default in payment of any of the terms thereof, the whole being made due notes at maturity, then all of the notes may by the consent of the party of the first part become due and payable without notice at hereby given on his violating any of the conthe option of the mortgagee. Two of the ditions or covenants of this chattel mortnotes being past due at the commencement gage; all notes being declared due as above of the action, the mortgagee, by declaration provided, any deficiency arising after apin the petition, elected to treat all as due. plying the proceeds of said sale as above

The Hogans were in default. Clayton an- specified the mortgagors agree to pay forthswered, alleging that he was surety only on with to said mortgagee, its successors or as. the two notes, and that January 23, 1904, signs. Where any of the notes mentioned in the Hogans made and delivered to him their this chattel mortgage are indorsed or guaranchattel mortgage conveying the property de- tied by any third party, it is agreed and unscribed in the petition subject to the plain- derstood that said indorsers or guarantors, tiff's prior mortgage lien. He demanded as shall have no rights under this chattel mortrelief a finding of his suretyship on the gage, unless same is assigned to them, and two notes, and that plaintiff be required to that on sale of the property as herein proexhaust the Hogans and its securities other vided the proceeds shall be applied on notes than this defendant, and apply a pro rata

not so guarantied or indorsed until the same of the proceeds on the two notes on which are fully paid.” he was surety before resorting to its reme- It appeared further by the uncontradicted dies at law against him as surety. Both testimony that the steam traction engine with chattel mortgages were duly attested and attachments was purchased by Dell S. Hofiled with the proper officer. Such further gan of the plaintiff after the purchase of the proceedings were then had that judgment other articles mentioned; the price was $1,200, was rendered against the Hogans on the

for which he offered his three notes for $100 petition of plaintiff, and an order of sale issued each with W. R. Hogan, and a chattel mortand the property embraced in the mortgage gage on the engine and the articles enumwas sold; the proceeds of the sale amounting erated in mortgage then on file; that the comto $1,248.75. The cause was then tried in pany refused the offer because not satisfied the common pleas as to the distribution of with the security, and then, and before the proceeds, and was appealed to the circuit proposition to sell was accepted, the name court, in which court plaintiff filed a reply of the defendant Clayton was obtained by to Clayton's answer in woich it was alleged: Hogan to two of the notes. The security (1) That in addition to the chattel mort- being thus made satisfactory to the comgage given by the Hogans to Clayton, they pany, the sale was made and the engine deon the same date executed and delivered to livered. The court thereupon found for the him a mortgage on real estate owned by defendant Clayton as to his alleged suretythem as further indemnity; and (2) that ship, and in his favor and against plaintiff at the time of the execution of the chattel as to the distribution of the fund, and ordered mortgage set out in the petition it was agreed that the fund, after payment of costs, be between plaintiff and the defendants that applied pro rata upon all the notes set out none of the sureties on the note secured by in the petition. The defendant offered no the mortgage should have any rights under testimony. No separate finding of facts was the mortgage unless the same should be by made, but there is no substantial dispute as the plaintiff assigned to them, and that on to the evidence, which is all set out in the

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