Ashland Common Pleas.

CAMPBELL, J.

This action was commenced before a justice of the peace by plaintiff to recover of defendant $14.40 for tuition of one Frank M. Bailey, under the provisions of what is known as the " Boxwell law," and came into this court by appeal.

The plaintiff states in the petition that it admitted said Bailey to the Ashland schools, he being a resident of Montgomery township, outside of Ashland village district; that said Bailey, prior to his admission to said village district, had been examined by the county board of school examiners, a certificate had been granted him, as provided by law, and on presentation of said certificate, he was admitted to the Ashland village schools and attended said schools from September, 1898, until the close of the school year in 1899, and that under the laws of Ohio the defendant board is liable for such tuition.

The defendant admits, substantially, all the statements of the petition to be correct but denies its liability under the law. The plaintiff's right to recover depends on the construction to be given the law in question.

The law as originally passed provided for holding examinations of pupils of sub-districts and special districts, by the county board of school examiners in certain branches twice a year, and a certificate granted to any such pupil enabled him to enter any high school in the county.

In 1894 the first section of the act was amended, providing among other things that "the tuition of such applicant may be paid by the board of education of the township in which such applicant resides."

In 1896 this section was again amended making his admission to such high school dependant upon the payment of tuition" and that said "tuition may be paid by the board of education of the township in which said applicant resides." Such were the provisions of the law in force in 1898 and 1899, applicable to this case.

The original act also provided for the granting of "diplomas " to successful applicants "who should deliver an oration or declamation, or read an essay in some public place provided by the clerk of the township board of education," and sec. 3 provided that "the tuition of such graduates may be paid by the board of education of the township where such pupils may reside."

It would appear from the law that two classes of pupils were designated, to-wit: successful applicants at examinations before the county. board of school examiners, and those granted diplomas as above indicated in addition to holding certificates.

Unless the word "may" means "shall," the plaintiff is not entitled to recover.

Ashland Township v. Montgomery Township.

The rule of construction generally approved in this class of cases is the following: "The word 'may' means 'must' or 'shall' only in cases where the public interest and rights are concerned, or where the public or third persons have a claim de jure, that the power should be exercised, or where something is directed to be done for the sake of justice or the public, good."

It is the duty of the court to ascertain if possible the intention of the legislature when called upon to construe doubtful or ambiguous enactments, and the following rule is laid down in 130 Indiana, 561. "The courts will look to the whole statute and all its parts, and when such intention is ascertained, it will prevail over the literal import and strict letter of the statute; and where the meaning is doubtful and uncertain, the courts will look into the situation and circumstances under which it was enacted; to other statutes if there be any upon the same subject whether passed before or after the statute under consideration."

Applying this rule, how should this law be construed? The Boxwell bill as first introduced, contained the word "shall" in the third section. It was referred to the standing committee on common schools, and among other amendments recommended, was the substitution of the word "may" for "shall" and in this way it passed. The present general assembly has again amended the law by substituting the word "shall" for "may" in both the first and third sections. For eight years the legislature persistently refused to give the enactment mandatory operation upon township boards of education, though frequent efforts were made to change the phraseology to that effect.

From a somewhat careful investigation of the question submitted I fail to find that "may" as used in this statute should have the force of "shall," and for that reason judgment should be rendered for defendant.

Even if the word "may" has the significance of "shall," or if the action would be governed by the law as recently amended, would the plaintiff be entitled to recover?

If the clause in the law as it now stands means what its language imports, that successful applicants or graduates are permitted to enter any high school in the county, or in an adjoining county," upon the payment of tuition" the payment of such tuition is a condition precedent to their admission, and the high school is not bound to admit them until it is paid.

In the first instance, who is to pay, and how? Township boards of education are authorized to levy a tax for the maintenance of the public schools within the township, and every pupil between six and twentyone years of age is entitled to the benefits to be derived therefrom. Township high schools may be organized and supported in this way, and all pupils have access thereto; but the constitutional guarantee of

Ashland Common Pleas.

"an efficient system of common schools throughout the state" does not, in our opinion, impose an obligation upon township boards to pay the tuition of a select few pupils who elect to enjoy the advantages of a high school, outside the township of their residence, either in the same, or in an adjoining county. For this reason also our finding is for defendant. McCray & McCray, for plaintiff. H. A. Mykrantz, for defendants.

CONVEYANCES-DEBTORS AND CREDITORS.

[Clermont Common Pleas, 1500.]

*MALINDA HEDRICK V. GEORGE H. Gregg et al.

1. DECLARATION OF GRANTOR IN DEROGATION OF TITLE NOT ADMISSIBLE. Declarations by grantor in a deed of conveyance, made after the conveyance and in the absence of the grantee, are not admissible evidence in derogation of the title conveyed in the deed, unless collusion or conspiracy between the parties, that the deed was executed for fraudulent purposes, is shown.

2. Deed SUSTAINED Where DebtoR RETAINS ENOUGH TO PAY HIS DEBTS. A conveyance of land, where the grantor has ample means left to satisfy all debts he has at the time of such conveyance, will not be set aside as fraudu lent on the petition of a subsequent creditor, unless it is shown that such conveyance was made in contemplation of becoming a debtor of such subsequent creditor.

3. WHERE CONVEYANCE FRAUDULENT-OTHER CREDITORS' RIGHTS.

If, however, the conveyance at the time was made with the intent to defraud the creditors of the grantor, a subsequent creditor may avail himself of this fraudulent character of the conveyance and have it set aside.

4. WITHHOlding Deed From RECORD WITHOUT FRAUD.

Unless it appears that grantee acted from corrupt motives, the fact that he withheld a deed from record for a long time is not material. Thus where it appeared that G, in 1888, owning real estate and being solvent, became surety on a note with his father, and in 1891 deeded a portion of his land to his mother, but retained sufficient to more than pay his indebtedness, and subsequently purchased more land, but in 1896 became insolvent, the holder of the note which was renewed in 1892, while G was still solvent, having made no effort to collect until after G's assignment in 1896, is not entitled to have the conveyance from G to his mother, in 1891, set aside although the deed was not recorded until in 1895.

The record, evidence and uncontested testimony offered herein by plaintiff shows:

January 14, 1888. H. Gregg in case No. twenty-five years old.

February 2, 1888.

A bastardy proceeding was begun against Geo. 8911, by Samantha J. Pribble, who was then

Plea of guilty in case No. 8911, judgment for $800, and same paid in full by Geo. H. Gregg. Journal D, 2nd, page 180.

Since writing opinion in this case, attention has been called to the case of Jones v. Leads, 10 Dec., 173.

That case had been already read and considered. The difference between that case and this, renders that valueless as authorityi n this case. Jones was an existing creditor at the time of the conveyance, Mrs. Hedrick was not.

MARKLEY, Judge.

Hedrick v. Gregg.

February 24, 1888. Deed from Geo. H. to Chas. H. Gregg, executed conveying real estate in petition described.

February 25, 1888. Deed recorded in book 123, page 321.

March 19, 1888. Mrs. Hedrick receives money, about $2,000.00, from Louis Bonar's estate and deposits same in Felicity Bank.

April 12, 1888. Elizabeth Moyer, the mother of Samantha J. Pribble, sues Geo. H. Gregg for damages for loss of her daughter's services through seduction in case No. 8970, which case was afterwards settled for $50.00.

May 5, 1888. Geo. H. Gregg borrowed $1,000.00 from Mrs. Hedrick, with Chas. H. Gregg as surety. Charles then owned ninety-two acres of land in one tract, eleven and one-half acres of land in another tract, and a warehouse in Felicity worth $500.00, and chattels, all worth $5,000.00 or more, and Charles then being single and out of debt except for the surety debt on this Hedrick note.

January 31, 1891. Charles H. Gregg deeded the land described in the petition to Susan Gregg, he still being single and still owning the 92 acres, the 11 acres and the warehouse, and being out of debt except on the Hedrick note.

December 17, 1891.

Charles H. Gregg married.

March 21, 1892. Charles H. Gregg bought 108 acres more land for $5,400.00, going in debt for two-thirds of the purchase money or more. May 4, 1892. Hedrick note renewed for $1,166.40 for one year. Signed by Geo. H. and Chas. H. Gregg.

April 26, 1895. Deed from Charles H. Gregg to Susan Gregg, recorded in deed book 136, page 190.

At the trial of this case plaintiff to maintain the issue on her part offered certain testimony, to the admission of which the defendant, Susan Gregg objected; and it was then agreed by counsel that the court should hear all such testimony and pass upon its competency on the final disposition of the case.

The principal portions of the testimony objected to were the declarations of George H. Gregg, testified to by John Walker, Esq., Mr. Bollander, the plaintiff, and her son and daughter, and his statements made before the probate court, as shown by the transcript offered in evidence.

Clermont Common Pleas.

Objections, also, were made to the declarations of Charles H.

Gregg.

These declarations of George H. Gregg, alleged to have been made at different times, were all made after he had conveyed the land in dispute to his son, Charles H. Gregg, and in the absence of said Charles, and the defendant, Susan Gregg.

There was a total absence of positive proof to show collusion, or conspiracy among the defendants at the time of the conveyance from George H. Gregg to his son Charles, and the conveyance from Charles to his mother, Susan Gregg, or either of them, to defraud the plaintiff, or any other then existing or subsequent creditor; therefore, by well settled rules of law, these declarations of George H. Gregg could not be heard to impeach the title to the land granted by him. Webb's Adm'r v. Roff, 9 Ohio St., 430-2; Ohio Coal Co. v. Davenport, 37 Ohio St., 194; Gay v. Gay, 26 Ohio St., 402; Voss v. Murray, 50 Ohio St., 19.

The declarations of Charles were also inadmissible, but mainly on the ground that he, being admittedly a trustee and having no beneficial interest in the property, could have been called as a witness by plaintiff. His declarations would be admissible only as those of a co-conspirator.

Had the plaintiff established a case by any competent evidence that these defendants had conspired to defraud plaintiff, or even Mrs. Moyer, there might be some reason for claiming the declarations to be admissible. When the conspiracy is once established, the acts and declarations of one conspirator may be given in evidence against all. This is the rule even in criminal cases. But how does this case stand? Has the plaintiff shown any collusion among the defendants to defraud her? Certainly not by any positive testimony. There was not any testimony offered tending to prove that George H. Gregg, at the time he deeded the land to his son, contemplated becoming the debtor of Mrs. Hedrick, or of any other person. But there was testimony offered, and properly admitted (Evans v. Lewis, 30 Ohio St., 11), tending to prove that he was indebted to his wife, and he had often promised to deed to her the land, and that the conveyance to Charles was in trust to him for Mrs. Gregg in satisfaction of that indebtedness. It is urged, however, that the suit of Mrs. Moyer for damages for the seduction of her daughter was then threatened, and very shortly thereafter commenced, and that the court is asked to infer from these facts that the conveyance was made in anticipation of a judgment in that case. The evidence tended strongly to show that the Pribble woman-Mrs. Moyer's daughter-was twenty-five years old at the time of the alleged wrong, and that she had long forsaken the maternal roof, and had been doing for herself. These facts must have been known to the parties and their attorneys, and the only surprising thing, under the circumstances, is the fact that Mrs. Moyer recovered anything at all. Certainly there was nothing in the case of such grave