Estate of Annie E. White. [Vol. 23 (N.S.) In the case at bar, the $5,000 passed to the church for the purpose of building a new church edifice. This court thinks that the majority of the members of our churches would resent the idea that the church buildings are to be used for the purpose of public charity only. Charity is one of the virtues taught therein, it is true, but it is only one of the many virtues and doctrines that are included in the religious and spiritual teachings of the church. As to the third exception, the probate court is affirmed. The first exception raises an entirely different question. Section 5332 of the General Code provides: "A tax is hereby levied upon the succession to any property passing in trust or otherwise to or for the use of a person, institution or corporation in the following cases: "3. When the succession is to property from a resident, or to property within this state from a non-resident, by deed, grant, sale, assignment, or gift, made without a valuable consideration substantially equivalent in money or money's worth to the full value of such property." And, under sub-division (b), "Intended to take effect in possession or enjoyment at or after such death." It is claimed that the first exception should be overruled because of the provisions of this statute. Prior to July 2, 1917, Annie E. White, the decendent, had executed a pledge, jointly with her sister, for the sum of $2,250. This pledge was taken up by the church when the note payable at death was executed. The first pledge was a legal obligation, collectable in a court of law by the church. The note, or contract, executed on July 2, 1917, had a consideration additional, by reason of this fact, to that recited on its face. At the death of the signer of the note, or contract, the church treated it as a vested obligation against the estate, presented it to the administrator, attached thereto the usual affidavit attached to claims presented to an administrator, who acknowledged the same and paid it. Such is the evidence in the case. The inheritance tax law was passed June 5, 1919, nearly two years after the execution of this contract or note. The rights 1921.] Hoffstetter v. Harris. of the parties thereto were vested July 2, 1917. There is no intention apparent on the face of the law to make the same retroactive. So it was not incumbent on this court to consider whether or not the Legislature had the power to make contract obligations already vested subject to the provisions of this law. There is no such apparent intention in the law. This is in accordance with the decision of the Supreme Court. of Iowa, in the case of Lewis v. Brown, reported in the 116 Northwestern Reports, page 99. The probate court is reversed as to the first exception and sustained as to the third, and the church is relieved from the payment of the tax. LEASES PERFECT IN FORM BUT DEFECTIVE IN FACT. RUDOLPH J. HOFFSTETTER, vs. JOHN HARRIS.* Common Pleas Court of Franklin County. Decided, March 18, 1921. Landlord and Tenant-Lease Defective and Lessee Evicted-Liability of the Lessor for Loss Sustained by Reason of the Eviction-Competency of the Testimony of Witnesses to Execution of a Lease-Tendency of the Courts to Favor the Lessee. 1. Where the testimony clearly shows that the parties concerned intended to execute a lease, and the instrument which was executed proves to be a lease defective in form but perfect in fact, it is of binding force upon the parties thereto, not as a contract for a lease but as a lease. 2. Eviction of one conducting a going business under such a lease, C. E. Blanchard and M. V. Kessler, for plaintiff. Hoffstetter v. Harris. [Vol. 23 (N.S.) SOWERS, J. The plaintiff is suing the defendant for damages by reason of the breach of lease entered into between the plaintiff and the defendant on the 20th day of March, 1915, for a period of five years, ending on the 31 day of March, 1920. He pleads three causes of action as the bases of damages, namely: First: He alleges that he was ejected from the premises on the 17th day of July, 1919, by action of the municipal court of Columbus. Second: He alleges that by reason of the occupancy of said premises he had established a good will which was of value; and, Third: That in defending in the ejectment suit in the municipal court he incurred expenses, which are a part of his damages. Plaintiff asks a total sum of $7,000. The defendant in his answer admits the occupancy of the premises as claimed by the plaintiff, that a suit in ejectment was brought against the plaintiff alleging that it was brought by the Hoster-Columbus Company, Inc., and admits that the plaintiff was ejected on the 19th day of July, 1919, but denies all the other allegations of the petition. The case was tried before the court, a jury being waived, and the testimony developed the following facts: that the paper writing attached to plaintiff's petition purporting to be a lease was executed as shown in the writing; that no rent was paid thereon after June 1st, 1919, although tendered to defendant by plaintiff, the defendant having previously given the plaintiff notice to vacate; that the defendant was a tenant by the month, in the premises occupied by him from which a part was sublet by him to plaintiff; and that the plaintiff was ejected as claimed by him in the petition. The writing shows that it was properly acknowledged by M. V. Kessler as notary public, who signed as a witness for the plaintiff and one Frank Reinhart signed as a witness for the defendant. The court is of the opinion that it was proper to admit the testimony of the witnesses as to the execution of this writing, as it is one of the primary objects in re 1921.] Hoffstetter v. Harris. quiring witnesses that they may prove the execution of the instrument. The testimony of Reinhart on this point was that he signed the lease in the defendant's place of business, when there were a large number of people present, but he does not identify them. The testimony of Kessler is to the effect that the plaintiff called him to acknowledge the lease and they together proceeded to the defendant's place of business, where it was signed and acknowledged in the presence of both witnesses by both the plaintiff and the defendant, and the writing following the names of the witnesses was inadvertently made by him, being suggested by a former lease existing between the parties. It was properly recorded and no question is raised as to its validity on this account. The statute requires that a lease of real property for this length of time must be acknowledged by the lessor in the "presence of two witnesses who shall attest the signing and subscribe their names to the attestation." The validity of the lease is attacked by the defendant upon the ground that it was not executed in accordance with the provisions of the statute. The court has examined with great care all the authorities cited by counsel for both plaintiff and defendant and while these various authorities are helpful, none of them seem conclusive upon the subject under consideration. The lease in the case at bar has two witnesses, but the writing after each name indicates for whom the witness acted. This writing is explained by Mr. Kessler in his testimony (supra..) Tiffany on Real Property at Section 459 states the following principle: "The witness need not be present at the actual signing of the instrument by the grantor, provided the latter acknowledges to him that it is his act, and expressly or implied requests him to attest the instrument." This authority defines the latitude extended to witnesses in their attestation of conveyances. The United States Supreme Court in a case from Michigan, found in 127 U. S., p. 326, Culbertson v. Witbeck Co., in construing a similar statute speaks as follows: "The statutes of Michigan require the attestation of two witnesses to the grantor's signature. A deed of husband and wife was offered in evidence, the attestation to which was: 'Signed, sealed and delivered in presence of S. W.' for the husband; ‘W. H.R., G. H.' for the wife; and there was a certificate that the word 'half' in the twelfth line was interlined before signing 'S. W., E. W.' E. W. Signing this certificate with S. W. was the justice of the peace who took the acknowledgment, and his certificate of acknowledgment stated that he knew the person who made the acknowledgment to be the person who executed the instrument. Held, that the execution of the deed was proved, and it was properly admitted in evidence." This authority is valuable in that it gives a construction of the apparent defect favorable to the validity of the deed. In the case of Lydiard v. Chester, 45 Minn., p. 277, the court in discussing a defective deed, say that, "the deed offered in evidence (by the grantee) was sufficient to pass title to the real property therein described, without regard to a defect, real or pretended, in the matter of its acknowledgement." Again the same court in the case of Roberts v. Nelson, 65 Minn., p. 540, say that the adding of the name of a witness and a certificate of acknowledgement only go to the probative force of the instrument. In the case of Kittle v. St. John, 10 Neb., 605, the court say: "Action for rent of a warehouse and lumberyard. Plaintiff offered in evidence a lease executed by plaintiff to defendant, witnessed, but not acknowledged or recorded, whereby the plaintiff demised the premises to the defendant for the term of five years at a rental to be paid quarterly in advance. Lease excluded by district court for the reason that it was not recorded. Held to be error, for which a new trial must be awarded." The court in its opinion quotes Kent's Commentaries as follows: "By the law of every state in the Union, all deeds and conveyances of land, except certain chattel interests, are required to be recorded, upon previous acknowledgment or proof. If not recorded, they are good, and pass the title as against the grantor and his heirs and devisees, and they are void only as |