
    Carpenter v. Canal Company.
    1. Where, after an order of sale is made in a foreclosure suit, the land is appropriated hy a railroad company, and the compensation agreed upon is paid to a receiver in the cause, and thereupon another mortgage creditor, hy answer and.cross-petition, seeks to impeach the appropriation proceeding for fraud, and to foreclose his mortgage, and the court dismisses such answer and cross-petition, as to the charge of fraud and the claim to foreclose, and remits the party to his lien on the money in the hands of the receiver, which money is distributed at a subsequent term, the order of dismissal is final, and a proceeding to reverse it is barred in three years.
    2. In an action to foreclose a mortgage, the lienholders were so numerous that it was impracticable to bring them all before the court, and some of them were allowed to .prosecute for the benefit of all; and a special master having been appointed, with instruction to report the names of the lienholders, and the amount due each, those who appeared before the master and proved their claims are as much bound by a judgment or order affecting the subject-matter of the suit as if they had been formally made parties.
    
      3. An action for wrongfully depriving a mortgagee of his security is barred in four years, whether such action is for a tort or for relief on the ground of fraud by charging the guilty party as a trustee. In the former case, the action is deemed to have accrued at the time of the injury; in the latter case, on the discovery of the fraud.
    Error to the District Court of Hamilton county.
    In 1856, Stephen S. L’Hommedieu, on behalf of himself •and others, filed a petition in the Court of Common Pleas ■of Hamilton county, against the Cincinnati and Whitewater Canal Company, a corporation under the laws of this state {35 Local Laws, 303), to foreclose the second of four mortgages given by the canal company, on the bed of the canal, ■etc., to secure all the claims of its numerous creditors. Divers persons were made defendants.
    After a judgment had been rendered in the court of common pleas, the cause was appealed to the district court, where, in 1861, a judgment in favor of the plaintiff and other creditors was rendered, an order for the sale of the property was made, and the cause was referred to M. E. Curwen, as a special master, to ascertain and report as to the liens on the property, showing in the report the names of the lienholders and the nature and amount of each lien. Subsequently, Henry C. Lord was appointed receiver in the case. The property was never sold under the order of sale.
    , In 1864, the special master filed a report, showing, among other things, that Alexis Burke had presented his claim under the third mortgage, amounting, October 7, 1861, to ¡$2,634, and that the master had allowed the same.
    In thq same year, the Cincinnati and Indiana Railroad Company, a corporation under the laws of this state, filed its answer and cross-petition, setting forth, among other things, that in 1862 and 1863, in pursuance of its lawful powers, it had located its railroad along the entire bed of the canal, and had agreed with and paid to the canal company $55,000, as the value of the property so appropriated; and the railroad company prayed that it might be quieted in the possession of the property thus acquired.
    Daniels Carpenter, one of the plaintiffs in error, also filed an answer and cross-petition, in 1864. He states, among other things, that he is the owner of a judgment for $2,-284.73, against the canal company, secured by the third mortgage above mentioned; that the alleged appropriation was fraudulent, and was effected by the railroad company buying the judgment of L’Hommedieu, so as to be enabled to control the case, and buying a controlling interest in the canal company ; and that the property which the railroad company pretended to have acquired was, in fact, worth more than $1,000,000. The prayer was that the alleged sale should be decreed void, and the property sold to satisfy the claims under the mortgages.
    Christopher Blackburn, and other creditors, by like answers and cross-petitions, asked for relief similar to that sought by Carpenter.
    At the June term (June 2), 1865, of the district court, the following decree was entered in the cause:
    “ This action came on to be further heard at this time upon the pleadings, former orders, proceedings thereon,, and proofs, and the arguments of counsel; and thereupon, after due consideration, the court find that the said premises ordered to be sold by the judgment of this court, entered in this action on the 2d day of November, 1861, have, in pursuance of the .statutes in such case made and provided, been appropriated by the Cincinnati and Indiana Railroad Company, a corporation duly organized under the laws of the State of Ohio; and that the said the Cincinnati and Indiana Railroad Company has made full compensation therefor to the said the Cincinnati and Whitewater Canal Company, by the payment of fifty-five thousand dollars, the sum agreed to be taken therefor by the said the Cincinnati and Whitewater Canal Company; and the said premises are now in the possession and under the control of the said the Cincinnati .and Indiana Railroad Company, for the uses and purposes for which the same were appropriated ; and the said sum of fifty-five thousand dollars has been paid into the hands of Henry C. Lord, the receiver of this court in this action, subject'to be distributed as this court may order; and that, by reason thereof, the said premises so ordered to be sold have been withdrawn from the control of this court, and vested in the Cincinnati and Indiana Railroad Company, according to law; and said sum of fifty-five thousand dollars substituted therefor for distribution.
    “And now also at this time came . • . . Daniels Carpenter . . . and Christopher Blackburn, and proposed to offer testimony conducing to establish that the said acts of appropriation of said premises, by the said the Cincinnati and Indiana Railroad Company, were fraudulent and collusive with the said the Cincinnati and Whitewater Canal Company, which, being objected to by the said the Cincinnati and Indiana Railroad Company and other parties in interest, the court refused to hear said testimony, upon the ground of want of jurisdiction; to which ruling of the court the said defendants, . . . Daniels Carpenter .. . and Christopher Blackburn, except.
    
      “And. the court further finds, upon the further motion in this action, that, on the matters and causes set up in the answers and cross-petitions of . . . Daniels Carpenter . . . and Christopher Blackburn, filed in this court in this action, that seek other relief than the distribution of the proceeds of the said sale of said premises, are matters and causes of original jurisdiction, and not within the appellate powers of this court as a court of appellate jurisdiction, and foreign to the causes of action brought into-this court by said appeal; and thereupon the court orders-all'such matters and causes of action to be stricken from said answers and cross-petitions, as constituting new causes of action of original jurisdiction, and not within the province of this court as a court of appeals; and thereupon the court orders the motion for distribution of said proceeds or funds under the control of the court to be continued to the next term of this court. To all which, the said defendants, . . . Daniels Carpenter . . . and Christopher Blackburn, except.”
    At the October term (October 2), 1870, of the district court, the cause was further heard, on motion of Carpenter and others, to ascertain the amount due various creditors, and the court found, among other things, as follows:
    “ The court further find that there is due the said Daniels-Carpenter the sum of $4,970.66, with interest from the first day of this term ; that said amount is secured by mortgage on the premises described in the pleadings, and is a lien upon the funds in the hands of the receiver of this court, found by the master’s report.
    “ The court further find that there is due the said Christopher Blackburn the sum of $2,455.31, with interest from the first day of this term, and that said amount is secured by mortgage, and is a lien upon the funds in the hands of the receiver of this court, found by report of the master; and that, as to the above named claims, the said master’s report is hereby approved and confirmed. . . .
    “ The court also confirms the report of said master in the finding $2,634 due to Alexis Burke, on the 7th day of October, in the year 1861, on the judgment in his favor against the said Whitewater Canal Company, rendered February, 1841, in the Court of Common Pleas of Hamilton county, Ohio; and the court further finds that said judgment was for $1,200, and that the interest thereon from the said 7th day of October, in the year 1861, to the first day of this term, is $1,647.20; and the court finds that Mary M. Burke, who is made a party hereto, is the administratrix of the said Alexis Burke, deceased, and that there was due her as administratrix on said judgment, on the first day of this term, the sum of $3,281.20; and the court further find that the sum is a lien on the funds in the hands of the receiver of this court.”
    Carpenter, Blackburn, the administratrix of Burke, and others, again excepted to the findings, except as to the time-from which interest was computed.
    At the May term of the district court (May 27), 1871, the cause was further heard as to the distribution of the said sum of $55,000, in the hands of the receiver, and the whole sum was distributed without reaching any creditor under the third mortgage, or paying to Carpenter, Blackburn, Burke’s administratrix, or any creditor standing in like relation, any part of the money. The concluding part of the order was as follows :
    “And as to all other matters in this cause contained, not by this or other orders in .this cause disposed of, or reserved for litigation elsewhere, that the parties hereto go-hence without day; and thereupon . . . Daniels Carpenter, Burke, Blackburn, and all other creditors named in the decrees of 1865, and also in the decree and findings of 1870, by this court, now move the court for a new trial, which motion, on due consideration, the court overrule, to which order the said parties except.”
    On March 3, 1874, Carpenter, Blackburn, the administratrix of Burke, and others, filed in this court, on leave, a petition in error to reverse these judgments and orders. But objection is made that the proceeding is barred by the statute which limits proceedings in error to the period of three years after rendition of the judgment or making the order sought to be reviewed.
    While the cause above mentioned was pending in the district court, Mary Burke, administratrix of Alexis Burke, Daniels Carpenter, Christopher Blackburn, and other creditors of the canal company, commenced, on December 31, 1870, an action in the Court of Common Pleas of Hamilton county, with respect to the same matters controverted or sought to be controverted in the other suit. The canal company, the railroad company, Henry C. Lord, and others, were made defendants.
    That petition was filed “ on behalf of the plaintiffs and such others as might come in and contribute to the expenses of the suit;” and sets forth the execution of the third mortgage, already mentioned, and the findings of the district court in the L’Hommedieu case of the amounts due the plaintiffs respectively. The charges made in the answer and cross-petition of Daniels Carpenter in that case as to the alleged fraudulent means resorted to by the railroad company to obtain possession of the canal are reiterated, and the facts claimed to show such fraud, and the •complicity of Henry C. Lord therein, are detailed at great length. The fact is stated that by the decree in the L’Hommedieu case, rendered in 1865, the district court refused to consider these alleged frauds for supposed want of jurisdiction, and it is alleged that the cause “ was continued that said questions of fraud might be determined in this court of common pleas.” The case of Goodin v. The Canal Co. and others, 18 Ohio St. 169, is mentioned, and it is stated that it was there “ held, in substance, that said agreement to fix the compensation to be paid for said canal property and privileges was fraudulent and void as to the creditors of said canal company; that the property, privileges, etc., aforesaid of said canal company might be subjected to the payment of the debts of said canal company; and that said railroad company was liable to the creditors of said canal company, to the full extent of the value, for any and all purposes, of the property, privileges, and franchises of said canal company.
    “ That it has been settled, by the judgments and records aforesaid, that their claims are valid; that said railroad company ought to pay the same, and in default thereof, that said canal property ought to be sold, and the proceeds thereof applied to satisfy said claims.
    “ But, inasmuch as the said Indianapolis and Cincinnati Railroad Company, after said case No. 26,285 had been decided by said supreme court, settled with the plaintiffs therein and procured their consent to have said last mentioned case dismissed, the plaintiffs herein, not having been parties thereto, say that said pretended appropriation of said canal property by said Cincinnati and Indiana Railroad Company, and said pretended agreement between said last mentioned railroad company and said canal company were fraudulent, as to the plaintiffs herein and others, creditors of said canal company.”
    With further reference to the proceedings in the L’Hommedieu case and the rights of the plaintiffs, the petition closes with a prayer for judgment against the defendants in the ease, in favor of the plaintiffs, for the amount of their respective claims and interest, and that if the money should not be promptly paid, the said canal property be sold, and the proceeds applied in satisfaction of the aforesaid claims of the plaintiff and other creditors ; “ and that the plaintiffs may have such other, further, and different relief as the nature of the case may require.”
    To this petition the defense was interposed, that the action was barred by the statute of limitations of four years, which defense the court of common pleas held to be sufficient, and thereupon dismissed the petition. The district court affirmed the judgment; and, on motion of plaintiffs below, leave was granted to file in this court a petition in error.
    
      Taft & Lloyd, J. T. Crapsey, L. French, and P. S. Hamilton, for plaintiffs in error.
    
      
      Hoadly, Johnson & Colston, and Matthews, Ramsey & Matthews, for defendants.
   Okey, J.

Was tbe order of June 2, 1865, final? A judgment rendered or final order made by the district court maybe reversed, vacated, or modified by the supreme court for errors appearing on the record. Civil Code of 1853, § 514; Rev. Stat. § 6710. The code also provides (§ 512) that “ an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment,. ... is a final order which may be vacated, reversed, or modified.” And see Rev* Stat. § 6707.

The object of the suit was the foreclosure of a mortgage given by the canal company. An order of sale had been entered in the district court. The railroad company, which had been admitted as a defendant, claimed, by answer and cross-petition, that subsequently to the entry of the order of sale, it had, under authority of law, appropriated the property mortgaged for its track. Other creditors, by answers and cross-petitions, sought to foreclose another mortgage given by the canal company on the same property, and also to impeach the appropriation of the property for fraud.

The substance of the finding and order of 1865, in this posture of the case, was that the appropriation of the bed of the canal by the railroad company was complete; that all right to obtain a sale of the mortgaged property was barred by the appropriation; that the lien which remained to the creditors was not a lion upon the property described in the mortgages, but on the amount ($55,000) paid therefor by the railroad company, and then in the hands of the receiver; and that the appropriation proceeding could not be impeached in that suit, for the reason that this would be an exercise, by the district court, of original and not appellant jurisdiction. Accordingly, the answers and cross-petitions were dismissed, so far as the creditors sought therein to impeach the appropriation for fraud, and there was left to those creditors only the right to pursue any lien they might have on the above-mentioned fund in the hands of the receiver, and a further right to impeach, in an independent suit, the appropriation proceeding for fraud.

Other, and in some respects conflicting, views as to this order have been suggested. It has been thought that the order of dismissal was void. But the court had jurisdiction of the parties and subject-matter. It has been suggested that the sum in the hands of the receiver ($55,000) represented the equity of redemption. But if so, why did the court refuse to enter an order of foreclosure on the answers and cross-petitions ? And finally, it is suggested that the right of foreclosure in an independent suit was reserved by the order of 1865. But, in effect, this would nullify the order remitting those creditors to their lien on the fund. "We are satisfied that neither of these positions is tenable; and that the order was an extinguishment of all right in the parties before the court, in fact or by representation, to obtain a sale of the mortgaged property in that or any other suit. Of course, if there be creditors who can not be regarded as having been before the court, the order can not affect them.

This order effectually disposed of a material part of the case. That is rendered certain by reference to the orders of 1870 and 1871. Indeed, as was then apparent from the master’s report on file, the order of 1865 virtually denied, to the parties now complaining, all relief in the cause. Such an order was necessarily final and not interlocutory. Teaff v. Hewitt, 1 Ohio St. 520; Fuller v. Clafflin, 93 U. S. 14. And see Brigel v. Starbuck, 34 Ohio St. 280.

Nor is it different as to the claim of Mary Burke, administratrix of Alexis Burke. The parties were very numerous, and aside from the provision in the mortgages allowing one to prosecute for the others, the statute, which accords with the rule in equity, provides that “where the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court one or more may sue or defend for the benefit of all.” Civil Code, § 37; Rev. Stat. § 5008. And no doubt a judgment or order in such case is binding on all persons standing in the like predicament; but the court will take “ care that sufficient persons are before it honestly, fairly, and fully to ascertain and try the general right in contest.” Story’s Eq. PI. § 120. It appears, however, from the record, that Burke appeared before the master, in pursuance of the decree of 1861, and proved his claim; and, besides, his administratrix was made a party in the cause in 1870.

The civil code (§ 523) limited proceedings in error to three years after the rendition of the judgment or making the final order sought to be reversed. As three years had elapsed from the time the order of 1865 was made — indeed, from the making of the order of 1870 — before the petition in error was filed in this court, the proceeding in error must be dismissed for that cause.

We come, then, to the consideration of the question involved in the case of Mary Burke,administratrix, and others against the railroad company and others. The question there is, whether the action is barred by the limitation of four years. The civil code provided -(§§ 12, 15) as follows: “ Civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued. . . . Within four-years : . . . (1.) An action for injury to the rights of the plaintiff, not arising on contract, and not hereinafter-enumerated. (2.) An action for relief on the ground of fraud. The cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” (R. S., § 4982). These sections extended to cases of an equitable as well as those of a legal nature. Howk v. Minnick, 19 Ohio St. 462; Combs v. Watson, 32 Ohio St. 228 ; Loffland v. Bush, 26 Ohio St. 559. And see Longworth v. Hunt, 11 Ohio St. 194.

On careful consideration of this anomalous petition, we are led to the conclusion that all it contains with respect to the mortgages is stated by way of inducement, and that the gravamen is the alleged fraud whereby it is said the plaintiffs were deprived of their interest in the property.

Doubtless a mortgagee could maintain an action at law for injury to his rights. Thus, in Allison v. McCune, 15 Ohio, 726, this court held that a special action on the case lies against one who lessens a mortgage security, and damages may be recovered to the extent of any actual injury sustained by such act, although the mortgagee was not in possession. There the injury was the destruction of a mill on the premises mortgaged. I am not prepared to say how far the principle of this class of cases extends; nor is it material. Plainly such an action would be barred in four years, and the statute would begin to run at the time of the injury.

But it is claimed that here is a trust which should be enforced in favor of the plaintiffs. If a trust, however, what is its character, and what will be the rights of the parties-if there is a trust? No doubt it is a well-settled rule in equity, as to continuing and subsisting trusts, that the statute of limitations does not apply to them. Kane v. Bloodgood, 7 Johns. Ch. 90. Our statute asserts the same rule. The code of 1853 provides (§ 6) that the title relating to the commencement of civil actions shall “ not apply in-the case of a continuing and subsisting trust.” 2 8. & C. 942 ; Rev. Stats., § 4974. But where the trustee denies the-right, lapse of time may constitute a bar. Other trusts, which might be the ground of an action at law, were not exempted from the operation of the statute.

The court will sometimes make use of the machinery of a trust to aid an injured party in obtaining property, the-title to which has been acquired by another by fraudulent means. The guilty party is sometimes called a trustee ex maleficio. Bispham’s Eq., § 91. Relief in such case is granted on the ground of fraud, and the statute of limitations will not be a bar where there is concealment. This is substantially in harmony with the provision of our statute, already quoted, that “ the cause of action in such case-shall not be deemed to have accrued until the discovery of the fraud.”

There is no express allegation in this petition that the fraud was unknown to the plaintiff until within four years before this suit was brought. A petition may be sufficient without such allegation. Combs v. Watson, supra. But the fraud was distinctly averred in the answer and cross-petition of Carpenter, filed in the L’Hommedieu case in 1864, six years before this suit was brought, and the action of the district court in 1865, with respect to the fraud' alleged in that answer and cross-petition, is stated in this petition. It plainly appears, therefore, on the face of this petition, that when it was filed the plaintiffs had known of the existence of the alleged fraud for more than four years.

As to the allegations concerning the Goodin case (18 Ohio Bt. 169), it is sufficient to say that it appears in the petition that the plaintiffs were never parties, and that the suit has been dismissed.

Upon other important questions — as, for instance, the power of the canal company to mortgage its property, and the right of the railroad company to appropriate the property without proceedings against, or agreement with, the mortgagees — we do not deem it necessary to express any opinion.

Other parties are betore us in each of these records, but their rights are not materially different from those expressly considered in this report.

We are thus brought to the conclusion that the statutes afford a bar as to each of these cases. We reach the conclusión reluctantly; for, without knowing what might be the result of a trial or hearing of the questions sought to be made, the fact is the plaintiffs have been deprived of such trial and hearing. But the misfortune is attributable to the laches of the plaintiffs themselves. When cases are clearly brought within the provisions of the statutes limiting the time within which actions and proceedings may be commenced, we have no more power to refuse the due enforcement of those provisions than we have to repeal them.

Judgment of dismissal and affirmance, as above.

Gilmore, C. J., and Boynton, J., dissented from the judgment.  