Sharpe v. State of Ohio.

under the law, and to appoint its members, there is no good reason why an irregularity or illegality in the act of establishing the office, any more than an irregularity or illegality in the appointment of the officers, should be held as rendering the acts of the officers void, and themselves mere trespassers. The reasons-the considerations of public policy-which exist in one case exist equally in the other. It is enough that the office is one provided for by law, and that the parties have the color of appointment, assume to be and act as such officers, and that they are accepted and acknowledged by the public as such to the exclusion of all others. Such was the case here. There was both the color and the fact of office.

Motion overruled.

JOHN SHARPE V. THE STATE OF OHIO.

On the trial of a person indicted under the 36th section of the crimes act (S. & S. 266), for procuring another to commit an offense, it is not competent to prove the declarations of the principal offender made after the completion of the offense, for the purpose of showing the guilt of the procurer.

ERROR to the Court of Common Pleas of Darke county.

The plaintiff in error was indicted and convicted, under the 36th section of the crimes act, for procuring one David Swank to steal certain bonds, the property of Henry Swank, of the value of $70.

On the trial, Henry Swank was called as a witness for the state, and having testified that the bonds had been stolen, also testified, against the objection of the defendant, to a conversation between the witness and said David Swank, which took place about the last of February or first of March, 1875, as follows: "I asked my son, David, if he did not know where they were, or something about

Kilbourne et al. v. Fay, Ex'r, et al. Keller et al. v. Shaeffer, Adm'r.

them, and he then told me that he stole the bonds himself, some time in January or first of February, 1875; that he had taken them out of his grandfather's bible; and that afterward, on the same night, and within a period of from one to one and a half hours, taken them to a big meeting at Neighley meeting-house, in Twin township, Darke county, Ohio, and delivered them to John Sharpe." To the introduction of this testimony the defendant excepted, and now, among other things, assigns it for error.

A. R. Calderwood and H. M. Cole, for plaintiff in error.

BY THE COURT. On the trial of a person indicted under the 36th section of the crimes act (S. & S. 266), for procuring another to commit an offense, it is not competent to prove the declarations of the principal offender, made after the completion of the offense, for the purpose of showing the guilt of the procurer.

Judgment reversed and cause remanded.

LINCOLN KILBOURNE ET AL. v. FREDERICK J. FAY, EXECUTOR OF H. T. FAY, ET AL.

AND

AUGUSTUS R. KELLER ET AL. v. GILBERT SHAEFFER, ADMINISTRATOR OF JONN KAUFFMAN.

1. Where a chattel mortgage is declared void by the statute, "as against the creditors of the mortgagor," and the mortgagor dies in possession of the mortgaged property, leaving an insolvent estate, such property becomes assets in the hands of the executor or administrator of the mortgagor, whose duty, as well as right, it is to defend his possession against the claim of the mortgagee, notwithstanding such mortgage was valid as against the mortgagor.

2. An unpaid legacy is not the subject-matter of a chattel mortgage; hence

Kilbourne et al. v. Fay, Ex'r, et al. Keller et al. v. Shaeffer, Adm'r.

an assignment of such legacy is not subject to the infirmity of an unfiled chattel mortgage.

THE former case was appealed to the District Court of Franklin county, and reserved for decision in this court. The latter is a petition in error to the District Court of Fairfield county.

Kilbourne's case was originally commenced in the Court of Common Pleas of Franklin county, by the plaintiffs, against the defendants, to enforce the alleged lien of a chattel mortgage executed by H. T. Fay, in his lifetime, to the plaintiffs, to indemnify them as sureties for him on a promissory note for $10,000, borrowed money, payable six months after date to one William G. Deshler, and bearing date March 30, 1870. A copy of the alleged mortgage, bearing the same date, was filed with the original petition. The granting clause purports to "bargain, sell, assign, and transfer unto said Lincoln Kilbourne and Mary F. Going all the right, title, and interest, legal and equitable, which I have as legatee in the estate of Lincoln Goodale, deceased. Also, all the stock of dry goods and merchandise belonging to me, and in my possession, in Columbus, Ohio, and being the stock of dry goods in the store of H. T. and W. B. Fay, High street, in said city of Columbus.

"And also all goods and merchandise that may by me be hereafter acquired and added to said stock of merchandise, which after-acquired merchandise I hereby covenant and agree to sell, and do hereby sell to, and the same shall become the property of said Lincoln Kilbourne and Mary F. Going, at any time they may choose to enter into the possession of the same, by themselves or either of them, or their or either of their agent or attorney authorized thereto upon the breach of the conditions or either of them hereinafter mentioned, and such taking possession of such afteracquired property is hereby declared to be a sufficient sale, transfer, and delivery of the same, and the full consent of myself thereto. To have and to hold said several rights,

Kilbourne et al. v. Fay, Ex'r, et al. Keller et al. v. Shaeffer, Adm'r. goods, and chattels now existing and hereafter to be acquired, when so taken unto possession, upon the following express terms and conditions, to-wit: That if the said H. T. Fay shall pay, or cause to be paid, said loan when it falls due, or if the same shall be renewed in whole or in part, shall pay said renewal or renewals so often as they or either of them shall fall due, and all interest thereon from time to time, then this conveyance and agreement shall become void, otherwise to be and remain in full force and virtue in law."

It also appears in said petition that II. T. Fay, mortgagor, died on the 13th of June, 1870, and that defendant, Frederick J. Fay, was duly appointed and qualified as executor of his last will and testament before the mortgage had been filed in the proper office as provided in the chattel mortgage act; but afterward, on the 29th of June, the mortgage was so filed. And it farther appears that the executor had notice of the existence of the mortgage before any appraisement or sale of the chattels belonging to his estate, and that plaintiff's notified him to separately appraise and sell the chattels covered by the mortgage so that the proceeds might be applied to their indemnification.

The Deshler note having afterward matured and remaining unpaid, and the executor having refused to apply the proceeds of the chattels covered by the mortgage exclusively to the payment thereof, the plaintiffs, as mortgagees, brought their said action on the 29th of March, 1871, to compel the executor of the mortgagor, and the executors of Lincoln Goodale, who were also defendants, to apply so much of the proceeds of the chattels covered by the mortgage, and the legacy aforesaid, as might be necessary to the payment of said note and the interest thereon.

The defendant, Frederick J. Fay, made answer to the plaintiffs' petition as follows:

"At the making of said pretended conveyance of mortgage, the said H. T. Fay was largely indebted to numerous creditors, was insolvent, continued insolvent to the time of his death, and his estate is largely insolvent. From the

Kilbourne et al. v. Fay, Ex'r, et al. Keller et al. v. Shaeffer, Adm'r. making of said conveyance to his death, the said H. T. Fay, with the consent of the plaintiffs, and in accordance with the understanding between him and the plaintiffs, continued in the actual possession of said stock of dry goods and merchandise, and continued to sell and dispose of the same at retail in the regular course of the business of said store, rendering to the plaintiffs no account of said sales, or the proceeds thereof, and without liability to render such account. After the making of said mortgage conveyance, the said H. T. Fay made frequent additions to said stock of dry goods from purchases made on credit, and died leaving said purchases unpaid for.

"On the 13th day of June, 1870, the defendant was duly appointed and qualified as executor of the said H. T. Fay, and immediately thereupon took possession of the assets and effects of said estate, including said store.

"The affidavit, by statute, required to be made to chattel mortgages, was not made to this mortgage until the 29th day of June, 1870. And the defendant says that said mortgage of said stock of dry goods and merchandise was, and is in law, fraudulent and void, as to the creditors of the said H. T. Fay, and as to the creditors of the said estate, and prays that the same may be so held and declared by the judgment of the court."

To this answer the plaintiffs demurred, and the court sustained the demurrer, and rendered judgment for the plaintiffs. The defendant, Frederick J. Fay, executor, etc., appealed to the District Court of Franklin county, where the cause was reserved for decision in this court. The case is now submitted on demurrer by the plaintiffs to the answer of the appellant.

The original action in Keller's case was brought in the Court of Common Pleas of Fairfield county, by the plaintiffs in error against the defendant in error, on the 10th of February, 1872. The following is the case as stated in the original petition:

That April 10, 1869, John Kauffman, residing in the city of Lancaster, by his mortgage conveyed certain chattels