
    Cline, Admr., v. Hammond et al.
    (Decided June 10, 1931.)
    
      Messrs. Cline & Patterson, for plaintiff in error.
    
      
      Messrs. Golfee, Fogg & White and Mr. Miller B. Pennell, for defendants in error.
   Kunkle, J.

Plaintiff in error, John A. Cline, Admr., in his second amended petition, claims in brief that he is the duly appointed, qualified and acting administrator with the will annexed of the estate of Alice H. Haines, deceased; that on the 12th day of June, 1924, Prank N. Dellenbaugh was the duly appointed, qualified and acting executor of the estate of Alice H. Haines, deceased; that as such executor said Dellenbaugh was on said date the owner of the legal estate in the premises described in detail in the second amended petition, and that the plaintiffs, Bertha Arey, Ella Arey, and Jack H. Arey, were the owners of the equitable estate in said premises; that on the said 12th day of June, 1924, an action was brought in the Court of Common Pleas of Cuyahoga county by the defendant, Una C. Hammond, said action being an application to register the title to certain lands claimed to be owned by said defendant, which lands adjoin immediately to the east the real estate described in the second amended petition; that such proceedings were had in such application to register said lands; that on January 20, 1925, a default decree was entered in said cause, wherein the said Dellenbaugh, executor of the estate of Alice H. Haines, deceased, was one of the defendants, and that on the 27th day of January, 1925, a decree of registration was entered in said case; that on account of a misdescription of the lands sought to be registered by defendant, Una C. Hammond, contained in her petition and the plat annexed thereto, and as carried into the judgment of the court, the west line of the lands alleged to be owned by said defendant was extended over- and onto the said above described premises, so that the 3.9754 acres described in detail in the second amended petition were included in the lands of the defendant sought to be registered by said judgment, and were taken from the lands above described belonging to tbe plaintiffs herein; that on the 11th day of January, 1925, the said Dellenbaugh died, and that thereafter, namely, on the 29th day of January, 1925, the plaintiff, John A. Cline, was appointed administrator with the will annexed of the estate of Alice H. Haines and duly qualified as the successor of said Dellenbaugh; that at the time said default decree and decree of registration were entered said Dellenbaugh, who at that time held the legal estate in said premises, was dead, and at said time there was no executor or testamentary trustee acting under said will of Alice H. Haines; that the plaintiff, Martha H. Arey, is the holder of a life estate in the above described premises, and plaintiffs, Ella Arey and Jack Arey, are each the owner of an undivided one-half interest of the remainder thereof; that said Dellenbaugh as such executor and testamentary trustee, during the pendency of said proceedings and until the time of his death, was in the actual occupation of said premises and that defendant had full and complete knowledge of such occupation; that said judgment was obtained by fraud as to these plaintiffs in the respects stated in detail in the second amended petition.

Plaintiffs aver that they have a bona fide and valid defense to said land registration proceedings, which, if permitted, will enable them to recover title to approximately 3.9754 acres of land taken from them by reason of said misdescription of land and mistake and fraud in said registration proceedings.

Plaintiffs, in brief, therefore pray that the judgment in said proceedings may be vacated and that upon vacation plaintiffs be granted leave to file an answer setting forth their defense.

To this second amended petition defendants, Wilbur Singleton and Una C. Hammond, demur. The demurrer of defendant, Singleton, is based upon the ground that this action was not brought within the time limited by the statutes of this state, as this action was begun more than one year after the decree sought to be vacated, and because the second amended petition of plaintiff does not state facts which show a cause of action against defendant, Singleton. The demurrer of defendant, Una C. Hammond, is upon the ground that the second amended petition does not state facts sufficient to constitute a cause of action.

The demurrers were submittted- to the trial court with the result that the same were sustained, and plaintiffs not desiring' to plead further, the petition was dismissed and judgment entered for defendants.

In brief, it appears from the petition that Judge Dellenbaugh, executor under the will of Alice H. Haines, had qualified and was .acting as such executor for a considerable time prior to his death, which occurred on January 11,1925.. The answer day under the summons served in the registration case was January 10,1925. The default judgment was taken January 20, 1925, some nine days after the death of Judge Dellenbaugh. No successor to Judge Dellenbaugh was appointed or qualified until January 29, 1925, at which date John A. Cline, one of the plaintiffs herein, was appointed and qualified as executor of the estate of Alice H. Haines, with the will annexed. The petition to vacate the decree in the registration case was filed by the said John Cline upon his learning of the proceedings that had been taken after the death of his predecessor and prior to the date of his appointment.

Section 11631 of the General Code of Ohio prescribes ten different grounds for vacating or modifying a judgment by the Common Pleas Court, or the Court of Appeals, after the term at which it was entered. The fourth and sixth grounds are as follows:

4. “For fraud practiced by the successful party in obtaining a judgment or order.”

6. “For the death of one of the parties before the judgment in the action.”

The lower court evidently was of opinion that the provisions of Section 8572-22, General Code, constituting a part of the Torrens Act were decisive of this action in favor of the defendants below.

Section 8572-22 among other things provides:

“Such decree shall not, after the expiration of the time for prosecuting error or appeal, be opened by reason of the absence, infancy or other disability of any person affected thereby, nor by any suit or proceeding at law or in equity for opening up judgments or decrees by reason of a party not having had actual notice of the suit or proceedings; but any person deprived of land or of any estate or interest therein or lien or charge thereon by a decree of registration obtained by fraud may file a petition in the case to open up and review the same within one year after the entry of the decree, provided no innocent purchaser for value, mortgagee or other lien holder has acquired an interest.”

Do the previsions contained in Section 8572-22 of the General Code of Ohio render inoperative, or repeal by implication, the provisions of Section 11631, General Code, which state that a judgment may be vacated or modified by the Common Pleas Court or the Court of Appeals after term where one of the parties was dead when the judgment in the action was rendered?

Section 8572-22 specifically provides for the vacation of a judgment on the ground of fraud, but, as above stated, under the Torrens Act such action must be brought within one year from the date of the decree.

Section 8572-22 also specifically provides that the decree shall not be vacated after the expiration of the time for prosecuting error or appeal by reason of the absence, infancy or other disability of any person affected thereby.

Does the term “other disability” include the death of one of the parties against whom the decree was taken?

The Torrens Act is a special enactment, and following the ordinary rules of statutory construction we are of opinion that this special enactment should not be held as repealing or modifying any of the general provisions of the statute unless there is a clear intent upon the part of the Legislature to so modify or repeal such general provisions of the Code. In our opinion the provisions of paragraph 6 of Section 11631, General Code, are still in effect unless modified or repealed by reason of the term “other disability” as contained in Section 8572-22, General Code.

Does the death of one of the parties to the proceeding against whom a decree was taken fall within the term “other disability”?

Webster defines “disability” as follows:

“Want of legal qualification to do a thing; legal incapacity, incompetency, or disqualification. * * * Absence of competent physical, intellectual, or moral power, means, fitness, or the like.”

Disability assumes a living or animate subject. We are of opinion that the Legislature in employing the term “other disability” used the same in its ordinary and legal meaning and had no thought of applying such term to a subject not in being.

We have examined the definition of the term “disability” in “Words and Phrases”, and find no definition given in any of the authorities which would warrant its use in referring to an inanimate subject. Various citations are given under “Words and Phrases” of the term “disability” as applied to life insurance policies. We concede that there would be some difference between the use of the word “disability” in a life insurance policy and in a statute similar to the one in question, but we are, unable to find any authority which employs or would warrant the use of the term “disability” in reference to a deceased person.

In Biederzycki v. Farrel Foundry & Machine Co., 103 Conn., 706, 131 A., 739, the court says:

“When the amendment uses the term disability, it manifestly uses it in the sense of incapacity, a use which prevails through the act. If we are right in this, it would follow that the amendment we quote refers to the living, and not to the case of death. Neither in this section nor in the entire act is disability used in the sense of death.”

The Torrens Act in many of its provisions is somewhat harsh and we are of opinion that its provisions should not be extended by judicial construction so as to include conditions which are not expressly contained in the act itself.

The rights, if any, of subsequently acquired lien holders can be determined when an issue is made by the pleadings.

Entertaining these views we are of opinion that the demurrers should be overruled. The judgment of the lower court will therefore be reversed and the cause, remanded for such further proceedings as are provided by law.

Judgment reversed and cause remanded.

IIornbeck and Sherick, JJ., concur.

Judges Hornbeck and Kunkle, of the Second Appellate District, and Judge Sherick, of' the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  