Cuyahoga County Circuit. do not, and a sale of such homestead is had, then, after the payment, out of the proceeds of sale, of the liens so precluding such allowance, the balance, not exceeding five hundred dollars, shall be awarded to the head of the family, or the wife, as the case may be, in lieu of such homestead, upon his or her application in person, by agent or attorney." The claim of the defendant Christy must be disposed of by either Sec. 11737 G. C., or Sec. 11738 G. C., and in either case, the result is the same. He is entitled to only $500 out of the proceeds of the sale of the proprety, and this he has already received. We hold, therefore, that he has no right in or claim against the fund in question. The claim of the First National Bank of Cortland depends upon the determination of the question whether by the rendition of the judgments in its favor against the said Henry C. Christy a lien was created against the real estate, or against Christy's interest therein, held under the land contract with Lizzie H. Neff. No lien founded upon the execution levied on March 7, 1911, can be asserted because the levy was made within four months prior to the filing of the petition in bankruptcy against Christy, which was followed by his adjudication as a bankrupt. By favor of Sec. 676 of the bankrupt act of 1898, as repeatedly decided, any lien so acquired would be null and void and the property affected released therefrom. The ultimate question for decision in this case, therefore, is, does the rendition of a judgment in the court of common pleas create a lien against the equitable interest of the judgment debtor in real estate within the county where the judgment is rendered? This question has been answered in the negative by our Supreme Court in a number of decisions. As early as 1824 it was held in Manley v. Hunt, 1 Ohio, 257: "Where land is sold but not conveyed, it is not affected by a subsequent judgment against the vendor, the vendor holding under a contract, and not having the legal title until after the judgment. An attempt to sell it upon execution, as the land of the vendor, will be restrained by injunction." In Schuler v. Miller, 45 Ohio St. 325 [13 N. E. 275], it is said in the opinion of the court, at page 331: Western Reserve Nat. Bank v. Christy et al. "The provision of the statute regulating judgments, that the lands and tenements within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which the judgment is rendered, is applicable only to legal interest in lands and tenements, to such interests as can be sold upon execution. The defendant or judg ment debtor must have a legal title in order that the judgment may operate as a lien." In Warner v. York, 25 O. C. C. 310 (1 N. S. 73), decided by this court in 1903, paragraphs 4 and 5 of the syylabus read: "4. An equitable interest in lands can not reached by an attachment upon said lands. "5. Nor does a judgment against the holder of an equitable interest in lands become a lien upon said lands." Unless the amendment of 1880 to Sec. 5374 R. S., now Sec. 11655 G. C., has changed the law on this subject, the rule must be considered as established, that a judgment does not create a lien upon an equitable interest in land, but attaches only to the legal title in lands and tenements. Section 11655, G. C., now reads: "The lands and tenements, including vested interests therein, permanent leasehold estates renewable forever, and goods and chattels not exempt by law shall be liable to be taken on execution and sold as hereinafter provided." By the amendment referred to, the words "including vested interests therein" were inserted after the words "lands and tenements" and it is contended on behalf of the bank that Christy's interest in the real estate under the land contract was a vested interest, and, by virtue of Sec. 11656 G. C., which refers to "such lands and tenements" and makes them subject to a judgment rendered against the owner, his interest in the land became bound for the satisfaction of the judgments rendered against him. Whatever the expression, "including vested interests therein," may mean, we do not think that its insertion in the statute has modified the rule long established in this state that the lien of a judgment does not attach to an equitable interest or estate in land. The decision in National Bank of Columbus v. Tennessee Coal, Iron & Ry., 62 Ohio St. 571 [57 N. E. 450], does not, in Cuyahoga County Circuit. our opinion, indicate any change of view on the part of the Supreme Court. The decision there announced was founded upon the finding that the judgment debtor had a legal and not an equitable title in the real estate involved, and therefore the judgment became a lien against said real estate. In accordance with the conclusions here announced, the cross-petition of the defendant, Henry C. Christy, and that of the defendant, the First National Bank of Cortland, will be dismissed, and the fund in question is found and decreed to be the property of the defendant, J. C. Logue, trustee in bankruptcy for Henry C. Christy, free and clear of any claims or liens asserted by the other parties hereto. Winch and Marvin, JJ., concur. MUNICIPAL CORPORATIONS. [Lucas (6th) Circuit Court, January 27, 1912.] *JOHN H. LLOYD, TAXPAYER V. TOLEDO (CITY). 1. Failure of City Officials to Conform to Directory Requirement as to Record of Contract Modifications not Nullifying. Section 4331, G. C., requiring that action taken by the proper officials modifying an existing municipal contract shall be made a matter of record, is directory only, and such action regularly taken is not nullified by failure through an oversight to make a record thereof. 2. Failure of Council Specifically to Authorize Contract Modification not Material. Nor does failure by the city council to specifically authorize a modification by ordinance render such a modification invalid since a municipal improvement which has been duly authorized by council and the necessary appropriation made, is left by the municipal code to the proper board or officer to be carried to completion. 3. Bad Faith Absent in Record. The record fails to disclose bad faith or any abuse of discretion in the modification by the officials in charge of the construction of a bridge over the Maumee river at Cherry street, Toledo. *Dismissed in the Supreme Court for want of preparation. Lloyd v. Toledo. 4. Failure to Certify Funds Available on Modification of Contract Previously and Regularly Executed. Where an appropriation for a specific municipal improvement has been made and funds provided by a sale of bonds to pay for the entire cost of such improvement, and thereafter a new contract is entered into modifying some of the terms of the original contract, the failure of the city auditor to certify that the money was in the treasury to the credit of the fund from which it is to be drawn does not render the modified contract invalid for violation of Sec. 4211, G. C., and this is true for an additional reason when the modifying contract imposes no increased liability upon the city. APPEAL. C. A. Seiders and Frank H. Geer, for plaintiff. Cornell Schreiber, City Solicitor, and A. G. Duer, for Toledo. E. B. King, for the C. H. Fath & Son Construction Co. RICHARDS, J. The plaintiff brings this action as a taxpayer of the city of Toledo against the city, its officials, and the C. H. Fath & Son Construction Co., for the purpose of enjoining the construction of a bridge over the Maumee river at Cherry street, under the modifying contract of August 9, 1911, and to enforce its construction under the original contract of March 3, 1910, at the compensation claimed by the plaintiff to be provided therein, and for such further relief as he may be entitled to in equity. The case has been submitted to us upon the evidence which was introduced in the court of common pleas and a large amount of additional evidence taken before a referee in this court, all of which we have carefully read. The question at issue and the amount involved have been such as to command the most thorough consideration of counsel and of this court, and in our deliberation we have been greatly aided by the able arguments, both oral and typewritten, of counsel. It appears from the evidence that the city provided the funds, amounting to $825,000, by the sale of bonds, and having taken the preliminary steps entered into the original contract with the C. H. Fath & Son Construction Co., on March 3, 1910, for the construction of a reinforced concrete arch bridge to be Lucas County Circuit. built under the directions of engineers appointed by the city. Upon the execution of the original contract the work was commenced by the C. H. Fath & Son Construction Co. and has been proceeded with to the present time. On August 9, 1911, a supplementary or modifying contract was entered into between said company and the city through the director of public service, the purpose of which was to modify the original method of construction in various respects. The original plan contemplated that, by means of cofferdams which could be pumped out, the foundations of the piers should be built in the dry, but in working on pier No. 6 water was encountered which appears to have seriously interfered with pursuing the work under that plan. The method adopted in the original plan was found by the city, on the advice of the consulting engineer, to be not feasible nor safe, especially for piers three and four, which adjoin the channel of the river where the head of water is strongest. By the original contract it was intended to use throughout most of the wells for laying the foundations, wooden lagging supported by iron rings, but the modified contract specifies steel cylinders in lieu thereof. The original contract, however, authorizes the use of shields, metal rings or steel cylinders under certain circumstances, when recommended by the engineers. The use of steel cylinders for the purpose intended is, of course, much more expensive than wooden lagging and iron rings, but the new contract provides for the removal from the work of the steel shields except the lower 24 feet 9 inches, and requires a credit to the city of four cents per pound, while the original contract failed to provide for any credit therefor. The modifying contract also provides for a layer of concrete called a blanket over the entire surface of the cofferdams six to ten feet thick, to be laid under water by means of a tremie pipe or other suitable method, and it further substitutes in certain places timber piles in place of concrete piles. In addition to the items already mentioned, the new contract requires the C. H. Fath & Son Construction Co. to provide a compressed air plant and the city agrees to purchase the same at $6,000, if it should require its use, and to pay the net cost of its operation not exceeding $25 per day. The modifying contract extends |