author: By HORNBECK, PJ.

text:
    AID INVESTMENT AND DISCOUNT, INC., Plaintiff-Appellee, v. YOUNKIN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4604.
    Decided October 23, 1951.
    Kenneth Little, McGhee, Rowe & Evans, Arthur L. Rowe, of Counsel, Columbus, for plaintiff-appellee.
    Knepper, White & Dempsey, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, PJ.

Plaintiff-appellant appeals on questions of law from the affirmance of an order of the Municipal Court of the City of Columbus granting a new trial to plaintiff after a judgment for $200.00 for defendant on. a verdict of a jury. Plaintiff, Investment Company, holder of a note and mortgage given by the plaintiff to J. Poster Crumley, the seller of an automobile, sued for a balance due on the note.

Defendant had made four monthly payments of $32.80 each on the note given for the sum of $492.00 and defaulted in further payment. The Investment Company, with the consent of the defendant, took the automobile, sold it to Crumley, the original vendor, credited defendant with the sale price, $282.72, and the amount sued for was $78.08, the balance claimed to be due.

Defendant answering set up several defenses,, that the plaintiff and Crumley worked in concert in the transaction whereby the note and mortgage were given and transferred to plaintiff; that the note was signed in blank and the amount after-wards filled in was not in accord with the true amount due the seller; that the Investment Company filled out the note; that the plaintiff was not a holder in due course; that the amount to be collected was excessive; that the plaintiff in reselling the automobile to Crumley did not exercise due diligence to secure the highest price. These defenses were also pleaded as causes of action on the cross-petition.

After verdict, upon motion, the trial judge granted a new trial and upon request of defendant set out as the reason for sustaining the motion that the verdict was not sustained by the evidence, §12223-2 GC. Defendant appealed to the Common Pleas Court which affirmed the order of the Municipal Court sustaining the motion for new trial. The judge who heard the appeal wrote an opinion wherein it was stated that the basis for affirming the action of the Municipal Court in sustaining the motion for new trial was prejudicial error in the charge to the jury. However, the entry journalizing the action of the Common Pleas Court was a general affirmance.

Appellant urges that the action on the appeal was erroneous because it was predicated upon an assignment of error which was not before the Court. This question is not made because we may not consider the written opinion of the trial judge as the only reason for the judgment but must be controlled by the journal entry through which the court speaks and which is broad enough to include an affirmance of the action of the Municipal Judge upon the grounds upon which he relied.

No doubt, at the time that this appeal was briefed, counsel for both parties acted upon the supposition that the order of the Municipal Court sustaining the motion for new trial was a final order. Sec. 12223-2 GC. The recent decision of the Supreme Court in Green v. Acacia Mutual Life Ins. Co., 156 Oh St 1, held otherwise'. We, therefore, are required to consider upon this appeal whether or not the trial judge abused his discretion in granting the motion for a new trial. Pullman Co. v. Webster, 130 Oh St 409, and Webster v. Pullman Co., 51 Oh Ap 131.

Appellant’s principal contention is that in granting the motion for new trial, the trial judge, and in affirming the judgment the Common Pleas Court, must have disregarded the two issue rule. Upon the state of the record, we must assume that both Courts acted with full knowledge of the two issue rule. There, thus, is presented two questions. One. did the Municipal Court err in holding that the verdict was against the weight of the evidence upon each and every issue properly presented to the jury? Two, if so, was such holding an abuse of discretion? If we could determine, as contended by the appellant, that the trial judge in sustaining the motion ignored the two issue rule, we would have another and different question than is projected on this record. P. C. & St. L. R. Co. v. Porter, 32 Oh St 332, 333; Schipper v. Brashear Truck Co. (Mo.) 132 S. W. (2d) 993, 125 A. L. R. 80.

The granting of a motion for a new trial upon factual issues is addressed to the sound legal discretion of the trial court. Pennsylvania Fire Insurance Co. v. Carnahan, 63 Oh St 258; Smith v. Board of Education, 27 Oh St 44. There are but two factual issues as to which there is any question whether the trial judge abused his discretion in granting a motion for new trial. They are as. to the exercise of due diligence on the part of the Investment Company to secure the highest price for the automobile repossessed; if it did not .observe such diligence, was defendant damaged; and whether or not defendant was entitled to any other damage and, if so, how much.

The proof of any diligence on the part of the Investment Company to secure the best price for the Olds when it was re-sold is difficult to find on the record. Plaintiff offered no testimony that it advertised the automobile; that it attempted to sell to any prospect' other than Crumley or that it made any effort whatever to get any bids on the car other than that of Crumley. An agent of the plaintiff testified generally that it was the custom to make an effort to get the highest price when cars were re-sold after having been repossessed but nothing whatever was offered as to this particular sale. However, the failure to exercise due diligence in and of itself would not be conclusive that the defendant lost thereby, unless it further appeared that had the plaintiff so acted it would have secured a higher price than that for which the automobile was sold. There was testimony in the record which tended to support the conciusion that the sale price was not too low but was fair and reasonable although defendant and his father testified that the automobile was worth $600.00 or more when re-sold. Much of the evidence of the defendant tended to show that the Olds was sold to him at an exorbitant price and that he had to make extended repairs on it. He offers no proof as to the cost of such repairs. The price at which Crumley re-sold the Olds affords some support for the conclusion that it was of less value when re-sold than when the defendant bought it. We would not hold that there was no support for the sustaining of a motion for new trial upon this issue.

The proof as to the items which were included in the amount for which the note was given is sadly lacking. The defendant could have required the Crumley Company to produce its records to disclose how the sum total which was carried into the note was reached. ' It should be kept in mind that the review here is upon the sustaining of a motion for new trial on a judgment for the defendant on his cross-petition as to which the burden of proof was upon him to establish the extent of his damage. There seems to be no dispute that the total purchase price of the automobile in question was $550.00 and the defendant was allowed the sum of $190.00 for the Ford which he traded in on the Olds. That left a difference of $360.00 owing Crumley. To that probably was added cost of title, interest, taxes and insurance. The amount of the note was $490.00. Manifestly, if there was some refund in insurance premium due the defendant of which plaintiff had knowledge, that should have been credited to him when his automobile was sold. But this amount, or any other specific amount to which he may have been entitled as damages is not established by any proof. Had the plaintiff recovered a verdict, it would be vulnerable with respect to these items representative of any amount to which defendant was entitled as a refund but the verdict here was for the defendant and unless there is specific testimony from which the jury could make its finding, the defendant has not met his obligation of proof.

Appellant urges that the appellee was not, as a matter of law, a holder of the note in due course. The basis of this contention is that upon the face of the note, in bold type, was printed the words “Payable at the Office of Aid Investment & Discount Inc.,” and on the reverse side of the note also appeared the name of the plaintiff. This, alone, would not support the conclusion that the appellee was not a holder in due course. Taken with all the other circumstances developed in the testimony there may have been a question for the jury upon this issue. It is a custom of long standing for banking institutions to provide notes to their customers on the face of which is printed in large type, payable at the designated bank. To hold that this in and of itself is proof that the bank is jointly interested with the payee of a note would not be a reasonable deduction; nor, would the fact alone that an indorsee of a note makes inquiry as to the transaction wherein the note was given and the financial ability of the maker to pay establish any joint relationship between the payee and the indorsee in the acceptance of the note originally.

Appellant cites two Ohio cases for the proposition that the trial judge erred in sustaining the motion for a new trial. They are Haffner v. Schneidl, 87 Oh Ap 143, (Cuyahoga), and Dyer v. Hastings, 87 Oh Ap 147 (Hardin). Both of these cases were decided upon the theory that the reviewing court could reverse if error intervened to the prejudice of the appellant without testing the error upon abuse of discretion.- In neither of these cases was it required, to reverse the action of the trial judge in sustaining the motion for a new trial, to find that he abused his discretion.

If we were testing this order upon the ordinary rule controlling the determination of error and independent of the necessity for finding an abuse of discretion on the part of the trial judge before we could reverse and remand, we would be disposed to hold with the appellant.

Upon the whole record which is unsatisfactory because the evidence is not definite upon many of the issues, we cannot hold that the trial judge palpably abused his discretion in holding that the verdict was not supported by the evidence and, therefore, the Common Pleas Judge did not err on the appeal in affirming the order of the Municipal Court.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By WATTERS, J.

license: Public Domain

text:
    BONEWIT v. WEBER.
    Common Pleas Court, Summit County.
    No. 163777.
    Decided April 22, 1952.
    Carl Myers, Akron, for plaintiff.
    James Olds, Akron, for defendant.
   OPINION

By WATTERS, J.

The question before us is whether the child in question born to one Julia Malazo eight and one-half months after the accident in question, and whose claimed father, Roy Bonewit, died one week after said accident and from injuries sustained therein, is to be considered as a child and therefore a beneficiary or dependent in the instant wrongful death case growing out of the death of said Roy Bonewit. Bonewit did not marry the mother, taut it is claimed that the child was acknowledged by him.

The Law

In Muhls, Adm’r, v. Michigan Southern Railway, 1859, 10 Oh St 272, while the 1851 wrongful death statute was in effect, the court held the fact that the son, beneficiary, was illegitimate, was immaterial, and could not affect the right oí the child as a dependent. There, however, the person killed, the deceased, was the son’s father, and an illegitimate child has always inherited through its mother and vice versa. Staker, Guardian, v. Industrial Commission of Ohio, 1913, 127 Oh St 13, 186 N. E. 616.

Syllabus (1) “An illegitimate, posthumous child, unacknowledged by its putative father, is not a dependent child, within the purview of 1465-82 GC.” Workmen’s Compensation Act.

(2) “The word ‘child,’ used in that section, is to be construed in its usual and ordinary sense, and applies to legitimate children and to children. legally adopted prior to the employee’s injury.”

The court refers to §8591 GC, then, §10503-15 GC, now, discussed later in Garner v. B. F. Goodrich Co., 136 Oh St 397, 26 N. E. 2d 203.

In Ransom, Adm’r v. New York City Ry. Co., 1915, 93 Oh St 223, 112 N. E. 586, L. R. A. 1916E, 704, the court held that in the wrongful death statute of Ohio, the words “parents” and “children” included adopting parents and adopted children as well as natural parents and natural children. Garner v. B. F. Goodrich Co. 1940, 136 Oh St 397, 26 N. E. 2d 203.

Syllabus (2) “Under the provisions of §10503-15 GC, ‘When by a woman a man has one or more children, and afterward intermarries with her, such issue, if acknowledged by him as his child or children, will be legitimate. The issue of parents whose marriage is null in law, shall nevertheless be legitimate.”

This statute removes the sting of illegitimacy from a child whose father acknowledges it and intermarries with its mother either before or after the birth of the child. Such issue is the legitimate child of the father within the purview of the Workmen’s Compensation Act, though the death of the father occurred two weeks prior to the birth of the child. (Emphasis by the court.)

The evidence showed that at the wedding Garner knew that his bride to be was pregnant and openly acknowledged the child to be, as his. Showers were given for the baby to be, and Garner married the mother. The court remarked that “the * * * acknowledgment * * * was notorious and certain [,and] the immutable laws of gestation were in harmonious operation with respect to actions and time.” (Emphasis by the court.) State ex rel. Herbert, Atty. Genl., v. Hocking Valley Mining Co., 1943, 73 Oh Ap, 483, 57 N. E. 2d 236.

Syllabus (1) “The word ‘child’ as used in §1465-82, paragraph (B), GC, prescribing the persons to whom death benefits under the Workmen’s Compensation Act shall be paid, includes an illegitimate child.”

The child was illegitimate, and was born before the death of the employee (father) who had pleaded guilty to being the child’s father, and who had been ordered by the court to support said child. The child had never lived with such father during the father’s lifetime.

Sec. 10509-167 GC states in part:

“An action for wrongful death * * * shall be for the exclusive benefit of the surviving spouse, the children and other next of kin of the decedent.”

In the instant case the child was born after the death of the father, in fact some eight and a half months thereafter. I hold it against public policy, where there has been no recognition or acknowledgment of the unborn child by the so-called putative father before his death, to put the cloud on him in a wrongful death action, when he is not in being to defend himself. However T hold that if it can be shown by proper court finding during his lifetime that he is the father, or that the father has recognized or acknowledged the child after its birth or before to be his, during his (the father’s) lifetime, then the child should be considered a dependent under the wrongful death statute or otherwise.

In passing as to proper and conclusive court findings as to whether a given deceased is the father of an illegitimate child, the recent Supreme Court case of State v. Snyder, 157 Oh St 15, 104 N. E. 2d 169, poses much confusion. Also a “conviction” of the man in bastardy would not be conclusive.

The evidence in this case in the court’s opinion, on the subject of the deceased’s claimed recognition or acknowledgment of the unborn child, is* weak and unconvincing, and does not sustain the plaintiff’s claim.

Julia Malazo, the mother of the boy, on page 36 of the transcript, testified as follows:

“The Court: When did you first know you were pregnant? Answer. The first week in October.”

On page 37 she said “By the 5th of October, I knew.”-

She testified (page 37) that she never consulted a doctor in regard to pregnancy until in November of 1946, about three months after she claims she thought she was pregnant, although she admits she was seeing the same doctor about the injuries she received in the accident which occurred October 11, 1946.

On page 40 Julia, testified that she first told Boy Bonewit that she was pregnant the first week of October on a Friday. Later she fixed it at a week before the accident, which would make it October 4, 1946.

The record shows that the child was born June 26, 1947, which would be eight months and twenty-two days after October 4, 1946, the day she told Roy Bonewit.

Royal Close (witness) says on page 18 that Roy Bonewit first told him that he had Julia pregnant about one month before the accident. That would figure out September 11, 1946, as the accident happened October 11, 1946. September 11, 1946, would obviously be long before she knew she was pregnant and long before she told Roy.

Mrs. Grace Kozar, Roy Bonewit’s sister (top page 5), testified that he visited her in Canton about one week before the accident and said nothing about the pregnancy. It is strange if he was telling the world that he wouldn’t tell his sister.

Mrs. Katherine Close, half sister of Julia Malazo (page 8), testified that Roy Bonewit borrowed five dollars from her husband to have a blood test in re marriage about a week before the accident. This doesn’t make sense, because Roy Bonewit didn’t know it, according to Julia (of pregnancy). Later on page 10 she testified that Roy told her of the oregnancy about two weeks before the accident.

Page 29 Mrs. Leona Elizabeth Collins, the former wife of Roy Bonewit, testified that before the date of her (Mrs. Collins) remarriage, which was September 5, 1946, Bonewit had told her (two weeks before September 5, 1946) that he had her pregnant and it was his baby, etc. It will be noted that this was supposed to be said by Bonewit some time before September 5, 1946, while the mother of the baby, Julia Malazo, says she did not tell Roy Bonewit until October 4, 1946.

On page 29 (bottom) the court asked Mrs. Collins:

“When was that conversation? A. I don’t know when it was.”
“The Court: How long before your marriage? (Sept. 5, 1946) A. Not too long, about two weeks.”

The evidence of the plaintiff does not in the court’s opinion even raise an inference that the child in question was recognized and acknowledged by Roy Bonewit as his child. In the first place I cannot believe Julia Malazo could have known or suspected she was pregnant by October 5, 1946, the date she says she told Roy Bonewit she was. It is unreasonable to believe that even had she so believed and so told Roy, that he would go around telling the world. That is not human nature. That is, they would both keep mum and say nothing until a doctor had passed his opinion, and then they would have made arrangements accordingly, got married, etc.

The evidence is beyond the realm of probability and most of it is entirely unreliable as pointed out in some detail above.

The court rules that the plaintiff has failed to show any acknowledgment of the unborn child as his, during his (the deceased’s) lifetime, and that therefore the child cannot be considered as a dependent in this wrongful death case under the statute.

Journal entry will be drawn accordingly with exceptions. Costs to follow the case proper.


author: By MILLER, J.

text:
    SILER, Appellee, v. BUREAU OF UNEMPLOYMENT COMPENSATION and TROY HOTEL COMPANY, INC., Appellants.
    Ohio Appeals, Second District, Miami County.
    No. 461.
    Decided November 2, 1951.
    J. Richard Gaier, Piqua, for appellee.
    Hon. C. William O’Neill, Atty. Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for appellant, Bureau of Unemployment Compensation.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Court of Common Pleas reversing the order of the Board of Review denying the plaintiff’s application for unemployment benefits. The Court in its judgment entry found the order appealed from “to be contrary to law and against the manifest weight of the evidence.” <-

The facts pertinent to the issues presented disclose that in June, 1937, the claimant herein, Nellie A. Siler, started to work for the Lollis Hotel Company of Troy, Ohio; that said employment continued' until July 15, 1949; that on July 19, 1949, the appellee reported for work as usual and was told by her employer that she was no longer needed. Thereupon, on July 25 a claim for compensation was filed with the Bureau of Unemployment. The claim was allowed and appeal taken to the Board of Review. A hearing was had by a referee and again the claim was allowed, the referee affirming the finding of the Administrator. Thereupon an application for rehearing was made to the Board of Review and the same was granted. Testimony was heard by the referee and a decision was rendered by the Board, disallowing the claimant’s claim for benefits. The fact upon which the Board based its order appears to be the following finding.

«* * * However, the evidence adduced at the instant hearing disclosed that she was not actively seeking employment and had only contacted one employer that she named for work during the period of time running from July 19, 1949 to February 24, 1950 (date of hearing herein). It is clear also that claimant restricted her availability for work which would enable her to be at home at meal times so that she could prepare meals for her husband. It would seem that claimant could not be heard to say that she was unable to obtain work in view of the fact that she only contacted one employer during some seven or more months of unemployment. In view of the fact that claimant cannot meet the mandatory requirements for filing a valid claim, as set forth in subsections (4) and (5) of §1345-6a GC, it becomes unnecessary to examine the reason for her separation from her employment with Employer ‘A’ as of July 19, 1949. Accordingly, her claim is herein disallowed.”

It will be noted that the Board’s decision was based upon the fact that claimant could not meet the mandatory requirements and that she was not actively seeking work. The Board relied upon §1345-6a, subsections 4 and 5, GC, in effect at the time the claim arose, and which provides:

“No individual shall be entitled to any benefits unless he or she;
“ (4) is able to work and is' available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted; and
“(5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employment not subject to the Unemployment Compensation Act.”

Counsel for the defendant-appellant herein cites the case of Shannon v. Bureau of Unemployment Compensation, et al., 155 Oh St 53, to support his position, the syllabus of which reads as follows:

“1. The burden of proof is upon the claimant to establish the right to unemployment benefits under the unemployment compensation law of Ohio.
“2. Mere registration of a claimant with a state employment agency and reporting weekly to such agency do not establish such claimant as ‘available for work’ under §1345-6 GC, as that section was worded prior to the amendment thereof which was effective October 18, 1949.
“3. In order to so qualify the claimant must prove reasonable effort to find suitable employment in addition to such registration and reporting.”

The real question presented, therefore, as we see it, is whether or not the order of the Board was against the manifest weight of the evidence. We have carefully examined a transcript of the testimony taken before the referee and are of the opinion that it is not against the weight of the evidence, much of the finding being based upon the claimant’s own statements. Under §1346-4 GC an order of the Board may be reversed, vacated or modified when it is “unlawful, unreasonable or against the manifest weight of the evidence.” Clearly, the decision was not unlawful, and we do not think it was unreasonable or not supported by the evidence.

The judgment of the Common Pleas Court will be reversed and the order of the Board of Review will be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By EMMONS, J.

text:
    CARTER v. SWAN et.
    Common Pleas Court, Summit County.
    No. 182009.
    Decided June 8, 1953.

      Chester Dinsmore, Akron, for the plaintiff.
    James Olds, Akron, for Federated Church of Richfield.
    William Spencer, Asst. Dist. Atty., Akron, for Trustees of Richfield Township.
    Alan Sophrin, Cuyahoga Falls, for defendant Joseph Mortimer.
   OPINION

By EMMONS, J.

This is an action for declaratory judgment as to the ownership of a one acre plot of ground situated in Richfield, Ohio, and also for a determination of the rights of the parties herein.

In 1841 Orson M. and Lucretia S. W. Oviatt and John and Laura N. Newton signed an instrument, a part of which is as follows:

“Know all men by these presents, that we, John Newton and Laura Newton, his wife, and Orson M. Oviatt and Lucretia S. W. Oviatt, his wife, all of Richfield in Summit County, Ohio, for divers causes moving, especially for the sum of $1.00 and the public good, in consideration received to our full satisfaction, we have given, granted, remised, released and forever quit claimed, and do by these presents absolutely give, grant, remise, release and forever quit claim all such right and title as we, the said John Newton and Orson M. Oviatt, have a right to have in or to the following described land * * *, to the place of beginning containing one acre of ground or land, the design and grant of this land is for public use for the benefit and public use of the Congregational Society and of those lands and those living on the west side of said ground and it is to remain as a public green * * *.”

It was admitted by counsel that any right that the Congregational Society would have by reason of this grant would inure'to the benefit of the Federated Church of Richfield since they are, for the purpose of this suit, the same entity.

Since the date of this instrument various persons of the Village of Richfield maintained this plot of ground cutting weeds and grass and building a driveway over this plot for the benefit of ingress and egress for those living on the west side of this plot, and also for the use of the members of the Congregational Society. There was grading done, trees planted and a flagpole erected, some of this improvement and maintenance being performed by members of the Church while again non-members assisted in this task.

The court will endeavor in this opinion to answer the respective claims of the parties herein.

Counsel for the Township Trustees claims that the plaintiff has no right to bring this action, for it is essential that the party seeking relief must show that he has a legal interest in the controversy.

Brown v. Manning, 6 Ohio 298, syllabus 4:

“Individual owner of adjacent lots may proceed in equity to enjoin proprietors from making private appropriations of a square dedicated for public purpose.”

Since the Township Trustees have disclaimed any interest in this property the burden had to fall on some one to determine the status of this plot of ground. In this instance the plaintiff is part owner of land contiguous to property that is about to be appropriated by others, and his right to peace and quiet enjoyment of his land, as well as the value thereof, may be affected. Certainly, he is not a volunteer assuming to protect the rights of others, but he is entitled in his own right to a declaratory judgment of his rights common to those of the Township, as incidental and necessary to the determination of his individual rights, he also being in a position as a probable reversioner of the fee to the land in question.

This court is not concerned with the fact that the Township Trustees have disclaimed any interest in this property, for in the dictum in Scott v. Snyder, 73 Oh Ap 424, 430, 54 N. E. 2d 157, 160, the court said:

“We have noted that no public authority, either the township trustees or the county commissioners, who would normally supervise these playgrounds, has manifested any purpose to exercise control over [it] or to insist upon any right of the public to use [it], * * * ‘An offer of dedication, to bind the dedicator, need not be accepted by the city or county or other public authorities, but may be accepted by the general public. To deny this would be to deny the whole doctrine of dedication.’ ”

The principal defense of the Township Trustees, as well as the Federated Church of Richfield, is that the title to this property in question was held to be in the name of the Church in a former case, being No. 152,511 of the Summit County records, which defense is one of res adjudicata, however, in a previous hearing in the instant case this court disposed of that question in the following opinion:

“The primary question at this stage of the case is whether the judgment rendered in case No. 152511 is such as would make the issues in this case res adjudicata, and if so, then the instant case should be properly terminated without further evidence or trial being had, however, if the doctrine of res adjudicata does not apply then the issues will be further tried by this court.
“If the judgment rendered in the former case is not a nullity and void, then the present action amounts to a collateral attack upon the previous judgment, which attack cannot in law, be sustained, however, if the judgment were entered by the court without having jurisdiction over the persons of the defendants and/or others, or the judgment was one that the court had no right or authority to make, then the instant action would not be such as would be a collateral attack upon the former judgment.
“There is no argument concerning the statement made by Assistant Prosecuting Attorney Spencer to the effect that a judgment of a court of record of general jurisdiction, regular on its face, creates a presumption of validity, however, even so, this presumption is a rebuttable one.
“Was the judgment, then, regular on its face, and if so, was this presumption of validity rebutted?
“From a perusal of the files in case No. 152,511 it is clear that this action was intended to have been brought under §10051 GC, in which a transfer of title was asked and service by publication had for four consecutive weeks only, which under §10052 GC was permitted without affidavit.
“There is no allegation in the body or prayer of the petition wherein it seeks to bar the interest of the defendants, or others, in this property. However, in the amended journal entry there is an order barring the defendants of any right or interest they may have therein, and clearly the court was without right or authority to make such an order, for such stems from an action to quiet title, whereas the petition seeks only permission to transfer property.
“If this were an action to quiet title or one excluding the defendants from claiming any interest in this property, then service by publication for four consecutive weeks only, without affidavit, is not such service as meets the requirement of the law in such action, and the court, therefore, would not have jurisdiction over the persons of the defendants, and the presumption of validity is rebutted and the judgment is a nullity and void.
“The allegations of the petition, the prayer of the petition and the defective service of summons were such that the defendants were in no position to defend this action, nor were the other members of the public in such a position, therefore a judgment divesting the interest of these defendants and others would amount to the taking of property without due process of law.
“It is therefore my finding that the court had no jurisdiction over the defendants, nor had the court the right or authority to make an order contrary to that asked for in the petition, and the judgment being void in so far as these defendants and others are concerned, the doctrine of res adjudicata is not applicable and the instant case is not a collateral attack upon a former judgment.”

There is nothing of record prior to the date of the execution of this conveyance by the Oviatts and Newtons, showing that the title was in their names, and counsel for the Federated Church maintains that since ownership of this plot was denied that the burden was on the plaintiff to prove it, which he claims was not done.

Stevens on Evidence, Article 100:

“When it has been shown that any person, for a long period of time, exercises any proprietary right which might have had a lawful origin by grant or license from the crown or from a private person and the exercise of which might and naturally would have been prevented by persons interested, if it had not had a lawful origin, there is a presumption that such right had a lawful origin and that it was created by a proper instrument * * *”

20 N. J. L. 61, Fuller v. Saxton:

“Recitals in ancient documents of former documents have been held to be presumptive evidence of the existence of the earlier writings.”

Jones on Evidence, chapter 3 page 35, paragraph 76:

“The possession of real property during a prolonged period affords ground for a presumption that the possessor has held under a grant.”

From a study made of the law concerning the first defense of the Trustees of the Federated Church the court is of the opinion that where a conveyance or dedication was made by persons in which grant they purported to be the owners of the fee and there is nothing of record or proof to show that such was or was not the fact, and such grant has been one of long standing without any one contesting their right to grant or convey such property for these many years, there is created a presumption then because of public policy that the original grantors were seized of the title to land and had a right to dispose of said property.

Here was a grant made in 1841 and no one ever claimed that the Newtons and Oviatts were not the owners of said land at that time nor afterwards, until this suit was commenced, so the fact that there were no pre-existing records of transfers found by which it was shown that the Oviatts and Newtons owned the fee, does not defeat their right to convey, as there is a presumption that such right existed. This rule must of necessity exist because of the manner that public records were kept in the early days of our history, and for the perpetuation of orderly processes in passing title.

The sole question remaining for the court’s disposition is: Was this conveyance by the Oviatts and Newtons a dedication, and if so, to whom and for what purpose?

It is recognized that a deed to operate as a grant must name a grantee, but if the instrument, of the form and language of a deed, lacks a grantee it will operate as a dedication of the land therein described, if it is probable that the intention of the grantor shows it to be for the use of'the public, religious or charitable organizations, and so forth. It is admitted that no grantee was named but that the instrument in question had the form and language of a deed, so the intention of the dedicators must then be established.

16 Am. Jur., page 361, paragraph 17:

“The intention of the owner to set apart land or property for the use of the public is the foundation and life of every dedication. * * * A dedication may be express as when the intention to dedicate is expressly manifested by a deed. * * * An implied dedication may be shown by some act or course of conduct on the part of the owner from which a reasonable inference of his intent may be drawn. * * *”

There is no doubt but that an express dedication of this plot was made by the owners, as evidenced by the deed, however, since there is an ambiguity existing as to the benefactor of the dedication the court must look to the intention of the dedicators as may be proved directly or inferentially, and in so doing the court has the right to determine how other persons considered the dedication.

In plaintiff’s Exhibit 11, which is a brief history of the Congregational Church, written by the members thereof, there is the following statement concerning the church:

“It had been a work demanding toil and self-denial and united effort. Some contributed timber, others the goodly whitewood for the siding, and still others the work of their hands. At that time the nails (costing ten cents per pound) and everything that came from abroad had to be shipped from Pittsburgh by ox team, requiring weeks for making one trip. Of the men who so generously contributed to this work only four remain — three of whom are ninety years of age, but the names of General O. M. Oviatt, James W. Weld, Esq., Judge John Newton, and many others will long be held in remembrance.”

This history was compiled in June, 1886, some forty-five years after the deed herein was made, and yet no mention is made in this history of a dedication by the Newtons or the Oviatts of this one acre plot of ground to the Church, even though throughout this history it recited the works and deeds of the various members of the congregation, including Newton and Oviatt.

In March, 1852, Orson M. Oviatt and Lueretia S. W. Oviatt deeded a parcel of ground to Everett Farnam, and in the description, mention is made of the “public square,” which is the plot in question.

In September, 1886, Ralph Farnam deeded to the Trustees of the First Congregational Society of Richfield, which is now the Federated Church of Richfield, some land, and in the description, mention is made of the “public square.”

In June, 1916, Howard B. Garman and wife deeded to the First Congregational Church of Richfield .174 acres of ground, and in the description, mention was made of the “public square.”

On various public records the plot is marked as “public square.”

In the conveyance which is a dedication the consideration recited is for the sum of One Dollar and the public good. (Emphasis by the court.)

A part of the deed is as follows:

“The design and grant of this land is for public use for the benefit and public use of the Congregational Society and of those lands and of those living on the west side of said ground, and it is to remain as a public green * * *.”

It seems quite apparent to the court that by the use of the expression “is for public use for the benefit and public use of the Congregational Society,” and the fact that the plot was to remain a public green and that part of the consideration was the public good, together with the other circumstances revealing the thoughts of others concerning the grantors' intentions, that there is no question that the dedication was for the use of the public to remain a public green, and that the Congregational Society and those west of the land were to be incidental and inclusive benefactors.

Even though there was sufficient evidence to prove intentions of the dedicators, yet if it were not so proved the essence of dedication is that it shall be for the use of the public at large, and while it is applicable to pious and charitable organizations, nevertheless, where a dedication is made and an ambiguity exists as to the dedicatee, and it cannot be manifested by the intention of the dedicator, then if the smaller group is inclusive of the larger one, the larger group will be considered the benefactor of the dedication. In this case the Church, as well as those living to the west of the land in question, are all inclusive in the general public, so the conclusion must prevail that the general public is the benefactor.

Counsel for the Church claims the Township or public never accepted this dedication, and if they did, then he claims the Church has been in possession and exercised dominion over the premises to the exclusion of the public, since 1920 or 1921, and therefore there was an abandonment of a public easement by non-user for more than twenty-one years.

With these thoughts the court cannot agree. The acts of the people of Richfield Township throughout these years show definitely an acceptance of this dedication, and while the people have not been as active in the past few years in maintaining this plot, nevertheless, the people do not have to continually occupy, beautify or effect the uses of a public park or green in order to overcome abandonment by the public of a dedication of land. There is evidence that some of the public are doing a little work in the way of maintenance and that the Church has not excluded the public from this ground, nor have the members of this Church been active in maintaining this particular plot, all of which is sufficient in the court’s opinion to negative an abandonment.

As stated by Attorney Dinsmore in his brief, the fact that easement rights are reserved which are appurtenant to particular other parcels of land is no objection to a dedication.

Buffalo, L. & L. R. R. Co. v. Hoyer, 214 N. Y. 236, 108 N. E. 455, 458:

“It is suggested that the private easements in said plot of land which are attached to and are owned with the lots abutting on said common are antagonistic to, and inconsistent with, the claim that the common is, in fact, a public park. We do not agree with such claim. Lands may be dedicated to the public for a park subject to private easements of access, light, and air. Such private rights or easements given prior to, or contemporaneous with, the dedication of land as a public park are not so antagonistic to the rights of the public in such lands as to prevent its use for park purposes.”

In conclusion, the court is of the opinion that there was a dedication of this one acre plot of ground to the general public as a public green, including uses appropriate to the activities of the Federated Church, which formerly was the Congregational Society, and with a right of way across it by the plaintiff and his co-tenants, the Federated Church and Joseph Mortimer, said right of way being an easement running with the land of the aforesaid parties.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. SELLERS, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2104.
    Decided January 31, 1952.
    Mathias H. Heck, Pros. Atty., Fred M. Kerr, Asst. Pros. Atty., Dayton, for plaintiff-appellee.
    Gertrude A. Bucher, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court, rendered upon the verdict of a jury finding the defendant guilty of armed robbery and sentencing him to an indeterminate term in the Ohio State Penitentiary of from ten to twenty-five years. The errors assigned are:

First: Said judgment is contrary to law.
Second: Said judgment is against the manifest weight of evidence.
Third: For all other errors apparent upon the face of the record.
Fourth: For error in the admission and exclusion of evidence.
Fifth: For error in instructions by the Court to the jury.
Sixth: Prejudicial statements by prosecuting attorney in the presence of the jury.

We have examined the entire record and find nothing therein which tends to sustain the appellant’s contention that the judgment is contrary to law. It is urged that the Court erred in permitting an alleged confession to be submitted to the jury when it was claimed that the same was made under duress and intimidation;, that the Court failed to hear testimony on this question in the absence of the jury before permitting the same to be offered. But the record reveals that counsel for the defendant agreed that the same might be offered and let the jury determine whether or not the same was voluntary or involuntary under proper instructions of the Court. See pp. 76 and 125 of the record. Then at page 130 of the record the Court properly instructed the jury with reference to the law applicable to the confession, saying:

“THE COURT: The Court has permitted the State to introduce in evidence written stenographic notes marked State’s Exhibit ‘D’, consisting of questions put to the defendant by two Dayton detectives, and the defendant’s purported answers thereto, together with oral declarations allegedly made by defendant to two Dayton detectives. Defendant, through counsel, has objected to the introduction of the written stenographic notes and the alleged oral declarations and admissions, on the grounds that such statements and admissions were obtained from the defendant by coercion through the use of duress, and were therefore involuntary. The State, on the contrary, claims that the defendant made such statements and declarations voluntarily and of his own free will. It will be your duty to determine from all the evidence bearing upon the alleged statements and declarations made by defendant, first, whether or not defendant made such statements and declarations, or any part thereof; and second, if you find defendant did make such statements, or any part thereof, you should determine whether or not they or a portion thereof were made by him voluntarily and of his own free will, free from any influence of force or duress. You will decide these questions from all the evidence in the case. Should you find from all the evidence that the defendant did not make such statements or declarations or admissions, or that if he made them he did not make them voluntarily and of his own free will, you will, in that event, disregard them entirely, and not consider them further. On the other hand, should you find that defendant did make such statements, declarations and admissions, or a portion thereof, and further find that he made them or a portion thereof voluntarily and of his own free will, you will then consider them as evidence and give them such weight as you find they are entitled to, after a consideration of all the evidence in the case.
“The State, having offered these statements or admissions, must prove that they were made by the defendant, but the burden of proving that a particular statement or admission was obtained by force or threats or duress is upon the defendant, which burden must be sustained by a preponderance or a greater weight of all the evidence in the case. You may proceed.”

Again, in its general charge the Court charged fully upon the question of admissibility of alleged confession in evidence and the burden of proof necessary to sustain same. It is our conclusion that the alleged confession was properly submitted to the jury". The judgment is not against the manifest weight of the evidence, as we find that the State offered evidence tending to establish all the elements necessary to constitute the offense of armed robbery. It is quite true there was a conflict in the testimony, but when there is credible evidence tending to establish the guilt of the accused a judgment will not be reversed solely because of such conflict. It will not be reversed because of insufficient evidence unless the verdict and judgment are clearly and manifestly contrary to the same. Breese v. State, 12 Oh St 146; Scaccuto v. State, 118 Oh St 397.

We find no prejudicial error in the admission or exclusion of evidence nor in the instructions of the Court to the jury. The case was well tried and the defendant received all the benefits to which he was entitled under the Constitution and the laws of this State. Finding no error in the record the judgment will be affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By BARTLETT, J.

text:
    ARGO et, Plaintiff, v. KAISER, Defendant.
    Common Pleas Court, Franklin County.
    No. 186147.
    Decided July 24, 1953.

      Armstrong & Carmack, for plaintiff.
    Richard Huggard, Columbus, for defendant.
   OPINION

By BARTLETT, J.

Under §3180-11 GC, the County Commissioners amended the Rural Zoning Resolution of 1948 by placing a certain parcel of ground in a general commercial district in Perry Township; and by petition the matter was placed upon the ballot in the 1949 election and was defeated by the voters of the township by a vote of 578 to 460. The ballot contained a text showing the correct location, size and owner of the parcel of ground, but also contained a defective description thereof by a lot number. An injunction was sought to prevent the owner of the parcel of ground from using it for any commercial purpose. HELD:

1. INJUNCTION GRANTED.

2. THE TEXT ON THE BALLOT DESCRIBING THE AMENDMENT WAS A SUBSTANTIAL COMPLIANCE WITH §4785-103 GC, THEN IN FORCE, AS IT SHOWED THE CORRECT LOCATION, SIZE AND OWNERSHIP OF THE PARCEL OF GROUND TO BE TRANSFERRED TO A GENERAL COMMERCIAL DISTRICT.

3. THE RESULT OF THE ELECTION DEFEATING THE AMENDMENT WAS VALID AND BINDING, THERE BEING NO PROOF THAT THE VOTERS WERE MISLED BY THE DEFECTIVE PART OF THE DESCRIPTION OF SAID PARCEL OF GROUND.

Under the Franklin County Rural Zoning Resolution of 1948 the 1.038 acre tract of ground in question and a similar tract adjoining it on the north were placed in a residential district, but prior to the effective date of said Zoning Resolution, the owner of the two tracts began construction of a store building on the north tract of ground.

On December 30, 1948, Irvin Hommon, the then owner, made application to the Rural Zoning Board to change .the two parcels of ground to a general commercial district which application was disapproved.

The case was certified to the County Commissioners and on May 10, 1949, the Board of County Commissioners placed both parcels of ground in a general commercial district; thereafter said County Commissioners upon petition of 84 electors, submitted the matter to the electors of Perry Township, at the 1949 general election; and the issue as it appeared on the ballot was rejected by a vote of 578 to 460.

The issue appeared on the ballot in the form prescribed by the County Commissioners, the title being in these words:

“AMENDMENT TO RURAL ZONING RESOLUTION GENERAL ELECTION HELD IN PERRY TOWNSHIP FRANKLIN COUNTY, OHIO NOVEMBER 8th, 1949”

Immediately below the above title on the ballot was the printed text describing the issue in these words:

“SHALL THE AMENDMENT ADOPTED ON MAY 10, 1949, BY THE BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, OHIO (WHICH AMENDMENT PROVIDED THAT LOT NO. 1 OWNED BY IRVIN HOMMON, LOCATED IN PERRY TOWNSHIP ALONG THE EAST SIDE OF THE COLUMBUSMARYSVILLE ROAD BETWEEN McCOY AND LANE ROADS AND BEING 1.03 ACRES IN SIZE, BE PLACED IN A GENERAL COMMERCIAL DISTRICT) BE APPROVED?”

The appropriate places for voting “yes” or “no” appear on the ballot in accordance with the statute.

The parcel in question was described in the deed to the present owner as “Lot Number Two, (2) of Exhibit “A” of the partition of the Porter J. McCoy and Anna McCoy farms, described as follows:”

(Metes and bounds set out, “containing 1.038 acres of land”).

The parcel in question appears as Lot No. 2, containing 1.038 acres, on the map in the County Engineer’s Office, Lot No. 3 thereon is the other tract formerly owned by Hommon on which the store was constructed, and Lot No. 1 thereon is owned by Maurice and Lucy Spain.

After the aforesaid election the defendant acquired the tract of land in question by deed from the Hommon estate, secured a building permit and started the construction thereof of a one-story building to be used as a gas station and restaurant.

The plaintiff filed the instant suit seeking an injunction against the construction of said commercial building.

The defendant states that he relied upon the indication on the records and maps of the County Rural Zoning Commission that said property was zoned for general commercial use, and would not have purchased the same if said records and maps had shown otherwise.

The stipulated facts show that the defendant, prior to the purchase of the property, inquired as to the zoning classification at the office of,the Franklin County Rural Zoning Commission; and. was advised that “due to the wrong description of the property voted on, there has been a question as to the proper zoning of this property.”

In the opinion of the Court, the chief issue in this case is, what effect if any, has the faulty description of the property on the ballot as to the result of the election.

In the case of Prosen v. Duffy, 152 Oh St 139, it was held:

“2. Where, pursuant to §3180-35 GC, a zoning plan is submitted to the electors residing in an unincorporated area of a township, the form of the ballot is controlled by §4785-103 GC, and the provision thereof, that ‘immediately below such title shall be printed the text describing the question or issue,' does not require the printing on the ballot of the whole text of the zoning plan or an impracticable digest thereof, but does require the printing of language constituting a topic or theme describing the question or issue submitted.”

The Franklin County Zoning Resolution was submitted to the voters under §3180-10 GC, while the Zoning resolution involved in the case of Prosen v. Duffy, supra, was submitted to the voters under §3180-35 GC, since it was a resolution by the trustees of a township; but the words of the two sections are identical, except that where in the first section the words “board of county commissioners” are used, in the second section the words “board of trustees” are used.

Sec. 3180-11 GC, provides:

“Amendments or supplements to the zoning resolution may be made in the same manner and for the same purposes provided in this act for the adoption of the original resolution, except that such amendments or supplements may be made without submitting them»to a vote of the electors, unless within thirty days after the adoption of the amendment or supplement there is presented to the board of county commissioners a petition, signed by a number of qualified voters residing in the unincorporated area of the township or part thereof included in the zoning plan and affected by the amendment or supplement equal to not less than 8% of the total vote cast for all candidates for governor in such area at the last preceding general election at which a governor was elected, requesting th.e board of county commissioners to submit the amendment or supplement to the electors of such area for approval or rejection at the next primary or general election.

Sec. 3180-36 GC, providing for amendments to Township Zoning resolutions, is in the identical words of §3180-11 GC, supra, governing amendments to County Zoning Resolutions, except that where the words “board of county commissioners” appear in the latter, the words “Board of trustees” appear in the former section.

J. Stewart in case of Prosen v. Duffy at p. 145 says:

“We are of the opinion that, since no special form of ballot is prescribed in §3180-35 GC, the provisions of §4785-103 GC apply to the present case, and we must, therefore, determine the meaning of the language in controversy, to-wit: text describing the question or issue.”

Again on page 148 of the Prosen case, supra, J. Stewart says:

“We hold, therefore, that the language on the ballot, supra, although it was not the text of the question or issue, nevertheless it was the text describing such question or issue.”

Applying the reasoning of J. Stewart in the Prosen case to the instant case, this Court is of the opinion that where an amendment to the County Zoning Resolution is submitted to the electors of a township, pursuant to §3180-11 GC, the form of ballot is controlled by §4785-103 GC, then in force; that the later section merely requires a text on the ballot describing the question or issue submitted; and that the words on the ballot in the instant case described the question or issue “amendment of the County Zoning Resolution” which was the subject of the election.

As was stated by J. Stewart in the Prosen case, supra, p. 149, in the present case there was no claim of fraud on the part of the officials. It is not disputed that no protest was made prior to the election and there is no evidence that any of the voters in Perry Township were misled. Since there were more votes cast upon the amendment of the zoning-plan issue than were cast upon the other issues at the same election, except the much publicized law permitting the sale of colored oleomargine, yes, even more votes than were cast upon a tax levy, it would seem that there was not only a lively interest but an intelligent conception upon the part of the electors in Perry Township with reference to such amendment of the county zoning plan.

It must be remembered that prior to the election, a public hearing on this amendment was held by the county rural zoning commission, notice of which was given as prescribed by law, that the County Commissioners held a similar public hearing after legal notice thereof, and that petitions were circulated and signed in Perry Township opposing the amendment. Moreover, just the year previous the County Zoning Resolution had been approved by the voters in a hotly contested election, after similar public hearings with proper legal notice thereof.

These public hearings as required by the law, were for the purpose of giving the people full knowledge of the proposed zoning plan, and a year later of a proposed amendment thereof, in order that they might be able to intelligently vote thereon when a compact text describing it was- placed upon the ballot, “We could not say,” in the words of Justice Holmes, “that they (the general assembly) overrated the intelligence of their fellow citizens. There was no evidence that the voters were deceived. But it is enough that the statute was followed.” Gray v. Taylor, 227 U. S. 51, 58. Whatever mistakes the record discloses in the present case, they were not made by the voters themselves but their servants on the public payrolls.

The text on the ballot describing the issue submitted correctly (emphasis ours) shows that the parcel of ground sought to be transferred was located in Perry Township along the east side of the Columbus-Marysville Road between McCoy and Lane Roads (less than 2400 feet) and being 1.03 acres owned by Irvin Hommon, but inaptly refers to the parcel of ground as Lot No. 1 owned by Irvin Hommon. The Court feels that the correct showing of the location, size and ownership of the parcel of ground were far more important to the voter than any lot number in a partition suit which most voters had never heard of.

“The ballots prepared and used in the election must,” be in proper form, “so that the voter may have at hand some means for making up his mind whether to vote to approve or to disapprove the measure.” — 59 C. J. Statutes, Sec. 2883, Ballot title, p. 711;
“Technical errors on the part of the officer charged with the preparation of official ballots will not destroy the efficacy of the ballots nor invalidate the election * * * unless it appears that the mistakes in fact have operated to prevent a free, fair and honest election, * * *.”

29 C. J. S. Elections, Sec. 173, p. 248;

“Where there is an absence of fraud, a substantial compliance with the statute, and the voters are not misled, the will of the electorate should not be set aside * * “Every reasonable intendment must be in favor of the validity of an election, and against holding it void for uncertainty.”

Mehling v. Moorehead, per curiam, 133 Oh St 395, 403, citing with approval, State ex rel. Atty. General v. Cogswell, 8 Oh St 620, 628;

and on p. 406 of the Mehling case, supra, the Supreme Court of Ohio further said:

“Strictly speaking, all provisions of election laws are mandatory in the sense that they impose the duty of obedience upon those who come within their purview, but irregularities, which were not caused by fraud and which have not interfered with a full and fair expression of the voters’ choice, should not effect a disfranchisement of the voters.”

This Court is of the opinion that §4785-103, GC, supra, has been substantially complied with since the text on the ballot describing the issue submitted to the voters, correctly stated the location, size and ownership of the parcel of ground sought to be transferred to a general commercial district; and that the validity of the election on such amendment,' was not affected by the faulty description in the text on the ballot, referring to the parcel as “Lot No. 1”, since there was no proof that the voters of Perry Township were misled thereby. The Court must not “strain at a gnat and swallow a camel” in the construction of statutes governing elections of this nature.

It is true that the defendant asserts that he relied upon the records and maps of the County Zoning Commission showing this tract of real estate was zoned for general commercial use, and would not have purchased this land if said records and maps had shown otherwise. On the other hand, the evidence is clear that the defendant was fully informed of all the facts in this case, before he purchased the premises in question; and the Executive Secretary of the Franklin County Rural Zoning Commission advised him that “due to the wrong description of the property voted on, there has been a question as to the proper zoning of this property ”

The defendant was on notice as to results of the election, and could acquire no vested rights in the purchase of this property, that might justly estop others in the community, from insisting that this law take its course, even though in conflict with the pecuniary interests of the defendant.

There has been some evidence that administrative officials treated this election as void because of a faulty description of the property on the ballot. It is not within the province of such officials to declare laws unconstitutional or elections void. There were available legal methods, by which the legality of this election might have been determined before the defendant invested his money in this property. He took a chance, knowing the hazards.

In view of the conclusions to which we have come, it is not necessary for us to pass upon the other issues stated in this case. Entry accordingly with exceptions by counsel for defendant.


text:
    LEWIS, Plaintiff, v. AKERBERG, Defendant.
    Common Pleas Court, Franklin County.
    No. 183414.
    Decided May 12, 1953.

      Eagleson & Eagleson, Columbus, for plaintiff.
    Dalton R. Kincaid, Barton Griffith, Jr., Columbus, for defendant.
   OPINION

By BARTLETT, J.

The Court finds that the plaintiff and her mother in 1920 furnished the purchase price of $15,000 for the 19 acre tract described in the petition and known as 6856 N. High Street, Columbus, Ohio; that the title thereto was taken in the name of plaintiff’s father, and the premises were purchased as a home for plaintiff’s parents, her brother and herself; that in 1921 the father conveyed said premises to the mother by deed of gift; that in 1943 the mother gave the son a mortgage for $7000.00 on the premises for money advanced the mother, including $4451.81 to.pay off a mortgage placed thereon by the parents; that on August 8, 1946, the mother conveyed said premises to the son by deed of gift, and the deed was recorded May 28, 1949; that from time to time the son advanced certain money for the maintenance and support of the father and mother who died in 1942 and 1951 respectively, and both parents lived on the premises until their death; and that the plaintiff had no knowledge of the $7000.00 mortgage until after the death of the mother and no knowledge of the deed to her brother until January, 1950.

Held as follows:

1. The plaintiff and her mother at the time of its purchase, took the equitable estate in the premises as tenants in common, in the proportions by which they furnished the purchase price thereof, being a 2/5ths equitable interest owned by plaintiff.

2. The mother and brother by their respective deeds of gift, held the legal title to the 2/5ths undivided estate in fee simple in said premises in trust for the benefit of the plaintiff.

3. The deed to the brother was given as security for advances made for the maintenance and support of the mother, and for that purpose must be treated as an equitable mortgage.

4. The $4415.81 advanced by the brother to pay off the mortgage given by the parents, is an equitable lien on the entire premises, but the other undivided interest therein must be exhausted before resort may be had to plaintiff’s interest therein, to satisfy said advancement.

All other advances by the brother must be satisfied out of the other undivided interest in the premises, as the interest of the plaintiff is not liable for said advances.

5. The court will take judicial notice, as part of the history of the country, that the present value of the premises exceeds by far its value in 1920; and the court is satisfied that the value of the other undivided interest in the premises will be much more than sufficient to satisfy in full the total claims of the brother for said advances and, consequently, the interest of the plaintiff in said premises will not be subject to said advances.

6. The court, therefore, orders the defendant Herbert Akerberg to convey to the plaintiff Vivian Akerberg Lewis the legal title to an undivided 2/5ths interest in fee simple in the premises described in the petition; and in the event the conveyance is not made by the defendant within thirty days from the entry of the decree herein, said decree itself shall act as such conveyance.

Vivian Akerberg Lewis brings this action against her only brother, Herbert V. Akerberg, seeking a decree finding her to be the owner in fee simple of an undivided 2/5ths interest in a tract of about 19 acres, on the west side of North High Street, south of Worthington, the title to said premises being held by her brother under a Quit Claim Deed, absolute on its face, from his mother; and that her brother be required to convey to her said 2/5ths interest, free from any and all claims of her said brother. The premises are also known as 6856 North High Street.

Mrs. Lewis sets forth in her petition that prior to July 15, 1920, she entered into an oral agreement with her father and mother that they would purchase a tract of real estate to be used as the family home during the life of her parents; that she should own an undivided interest in said premises in proportion to the part of the purchase price furnished by her; that the title to the premises was to be taken in the name of her father, Mathias Akerberg; and that if the premises were sold during the life of her said parents or either of them, plaintiff should receive her respective share of the proceeds of said sale.

Mrs. Lewis further states in her petition that pursuant to said agreement she and her parents purchased the aforesaid premises for the sum of $15,000.00 from Belle Cleveland and others; that the title thereto was taken in the name of her father by a-deed dated July 15, 1920; that the plaintiff paid $6,000.00 as her portion of said purchase price; that plaintiff’s mother and her brother, at the time of said purchase, had full knowledge of the terms of said agreement and the portion of the purchase price paid by her; that on March 17, 1921, her father conveyed said premises to her mother, Mary D. Akerberg, by a deed of gift; that her father died December 22, 1942; that her father and mother respectively, held title to the 2/5ths interest in the premises as her trustee; that without her knowledge or consent, on August 8, 1946, her mother conveyed the premises to her brother by a Quit Claim Deed of gift; that her brother did not file said last mentioned deed for record until May 28, 1949; that she first learned of the conveyance of said premises to her brother in January, 1950; that her mother died February 11, 1951; and that by virtue of the facts well known to her brother, he held title to the 2/5ths undivided interest in the premises as her trustee, but that her brother now claims to own the entire estate in said' premises and denies she has any interest therein.

On October 29, 1951, Herbert Akerberg filed his answer, admitting Mrs. Lewis wa's the daughter of Mathias and Mary D. Akerberg, who died on the dates set forth in her petition, and that she is his sister; that the premises were conveyed to the respective parents and to himself as stated in her petition; but denies all other claims of Mrs. Lewis.

The case came on for trial February 24th last, at which time Herbert Akerberg tendered a new answer which at first the Court refused to permit being filed, but at the close of the plaintiff’s case, the Court permitted the new answer to be filed in order to further explore the facts in the case.

The new answer sets forth the same facts and denials as the previous answer; and in addition, denies the trust agreement set up in the petition, but states if plaintiff ever had any interest in the premises, the same is barred by the statute of limitations; that plaintiff is estopped to claim any interest therein, and is guilty of - laches in asserting her claim; that during the life of both parents she did not assert any claim therein, and that defendant upon the faith and security of his mother’s title to the premises, advanced monies to both his father and mother from 1933 to the death of his mother in the sum of $ ; that the defendant in 1943, paid $4415.81 to the Ohio State Federal Savings and Loan Association in discharge of a mortgage on the premises given by his parents and became subrogated to the rights of said association, and, on account of said advance of $4415.81 and other advances, he received from his mother a note and mortgage for $7000.00 on said premises; that prior to August 8, 1946, defendant in addition paid to his parents for their maintenance and support, the sum of $11,190.19, and on said date, for said considerations his mother conveyed the premises to the defendant, and as a further consideration therefor, defendant agreed to pay for the support of his mother such sums of money as she needed, and did thereafter so pay $5581.32; and that said sums of money were advanced by the defendant and said mortgage received by him, without knowledge of any claim against the premises by his sister.

The evidence at the trial showed that Mathias Akerberg in 1920, was a blacksmith with the Pennsylvania Railroad, living in a modest home at 132 Midland Avenue, Columbus, Ohio, with his wife,. Mary D. Akerberg, his daughter Vivian and his son Herbert. Mathias earned about $7.60 per day; Vivian went to work at 15 years of age, finally as secretary and bookkeeper, and Herbert then 23 years of age, worked for the Massie-Harris Harvester Company and the Ford Motor Company. In 1928 Herbert moved to New York and became affiliated with the Columbia Broadcasting Company and finally became its Vice-President in charge of the television network.

In 1920 the Akerberg family moved from Midland Avenue to the new home on the 19 acre tract on the west side of North High Street, south of Worthington.

Vivian called Herman Johnson, a real estate dealer, about the sale of the North High Street property (R. 11). Thereafter, May 4, 1920, Mathias and his wife signed a contract to purchase the 19 acre tract for $15,000.00 from Belle Cleveland and others.

The exhibits show that on April 20, 1920, Vivian deposited $7915.00 in her checking account and on the same date she withdrew by check $7000.00, which she deposited the same day in her father’s savings account at the Ohio State Savings Association; the balance on the father’s account was $35.50 at the time Vivian deposited the $7000.00.

On June 24, 1920, the Akerberg family sold the Midland Avenue home for $5900.00, the title being in the name of Mary D. Akerberg. She received from the purchaser Frank M. Dye $1000.00 cash and two mortgages for $3500.00 and $1400.00 respectively; and on the same day the $1000.00 cash was deposited in the savings account of her husband at said Savings Association, being the next deposit after the $7000.00 deposit therein by Vivian.

At the time of signing the contract to purchase the 19 acres, Mathias gave Herman Johnson a check for $500.00 on said Savings Association to apply on the purchase price thereof. On July 15, 1920, Mathias received a deed from Belle Cleveland and others, for which he gave Belle Cleveland a check from the savings association for $3447.52, being the balance of a $3500.00 purchase mortgage of said date on said premises given by Mathias and wife to said association, the $500.00 check dated May 7,1920, held by Herman Johnson, the $3500.00 mortgage from Dye on the Midland Avenue property, a $1400.00 second mortgage on the 19 acres, a $34.28 check, cash $104.70, and a check from said association for $6000.00 — which, with the $12.50 revenue stamp and $1.00 for recording the mortgage, made the total $15,000 purchase price of the premises.

On June 17, 1920, Mathias gave a $634.92 check on said association to pay off the mortgage on the Midland Avenue property and on June 24, 1920, he gave such a check for $177.00 to Harry G. Butler, as a broker fee on the sale of the Midland Avenue property, and on July 13, 1920, Mathias gave Vivian a similar check for $723.58.

On July 24, 1920, when the $6000 check was drawn to Mathias by the association and turned over to Belle Cleveland, it left a balance of $18.13 in his savings account. On p. 14 of the record the real estate dealer, Herman Johnson, testified: “This deal had some things in it you wouldn’t know until it was actually closed on the last day”; and plaintiff’s Exhibit 5 prepared by Johnson bears this out.

At. no time during the trial did the defendant state that he had no knowledge that his sister had furnished part of the purchase money.

There can be no question that the mother knew how the purchase money was obtained to buy the 19 acre tract. $1000.00 of the sale price of the Midland Avenue property was placed in the Savings account of her husband. The mother was present when the purchase of the premises was closed. She signed the $3500.00 purchase money mortgage to the Savings Association. She signed the $1400.00 second purchase money mortgage to Belle Cleveland, and she assigned the $3500.00 mortgage on the Midland Avenue property to Belle Cleveland as part of the purchase price of the 19 acre tract.

Mrs. Lewis was very much limited as to her testimony, by virtue of §11495 GC, since her brother was claiming title under the deed from his mother who had since died. Nevertheless, the exhibits go together as perfectly as any jig saw puzzle ever worked out. With the testimony of Herman Johnson the real estate dealer who closed the deal for the 19 acres, as well as the testimony of the Teller from the Ohio National Bank and the two representatives of the Savings Association, the evidence is clear and convincing that Vivian Akerberg furnished $6000.00 of the $15,000.00 purchase price of the 19 acres in dispute.

The Court feels that there is sufficient evidence to sustain the allegations of plaintiff’s petition that the title to the 19 acres was conveyed to her father under an express trust agreement, but in view of the undisputed evidence as to how the purchase price was furnished, proof of an express trust was not necessary to the plaintiff’s case.

“Where a purchase is made with money belonging to a child and the legal title taken in the name of the parent * * * the presumption is that the title is so taken in trust, for the benefit of the child; and the burden is on the holder of the legal title to overcome that presumption. It is true, that where the consideration is furnished by two or more persons, the share advanced by each must be a definitely ascertainable aliquot part in order to raise a trust pro tanto; but we perceive no difficulty in the application of that rule in this case.”

Williams, J., in the case of Roberts v. Remy, et al., 56 Oh St 249, 256, also syllabus 2 thereof; Pomeroy’s Equity, Sections 1037, 1038; 40 O. Jur., Trusts, pages 275-278; 54 Am. Jur. Trusts, Sec. 194, 195; Scott on Trusts Vol. 3 Sec. 440; Paschall v. Hinderer, 28 Oh St 568.

“An express agreement to the same effect as a Resulting Trust does not preclude the existence-of the Resulting Trust, where the essential elements of a Resulting Trust are present (citing 169 U. S. 398), and the fact that the one seeking recovery of property founds his claims on an express trust, and disclaims a Resulting Trust, does not prevent the Court from treating it as the latter if it is such a fact.” 4 Am. Jur. Trusts, See. 195.

Where the wife pays and the title is taken in the name of the husband, the same presumption of a resulting trust arises, as where the consideration is furnished by the child and title is lodged in the parent. 40 O. Jur., Trusts, pg. 279, Sec. 100. Consequently, the mother and daughter in the instant case were exactly in the same position, each being the equitable owner of an undivided portion of said premises to the extent of their contribution to the purchase price, with the legal title in their husband and father.

The conveyance of the premises by deed of gift to the mother was consistent with the trust and in no sense adverse, and cannot be treated as a repudiation of said trust relation or a denial of the right of the cestui que trust, unless the beneficiary has knowledge that a repudiation was intended. 3 Scott on Trusts, Sec. 109.

“The conduct of the trustee must have amounted to an open repudiation; a mere technical breach * * * without other circumstances indicating a position adverse to the trust, would not destroy the continuity of the latter. This would be especially true if the trustee and the beneficiary were near relatives, as when the former stood in loco parentis to the latter, for in such cases, the presumption would be against the repudiation of the trust.” 16 O. Jur., Equity, p. 122.

The Statute of Limitations could only begin to run after such intended repudiation was known to the beneficiary, 16 O. Jur., Equity, p. 278.

“Laches may be a bar, but in the case of a beneficiary under a resulting trust, he is not barred by mere lapse of time. He is barred only if the trustee repudiates the trust to his knowledge and he thereafter takes no proceeding against the transferee for so long a time that it is unequitable to permit him to enforce the trust.” 3 Scott on Trusts, Sec. 409.

The defendant in his new answer and in the trial called attention to certain mortgages placed on the premises by the father and mother, and claimed they constituted breaches in derogation of the alleged trust. It must be remembered that two purchase money mortgages were placed on the premises at the time of purchase, and the subsequent mortgages would appear to be merely means of refinancing in order to secure more favorable interest rates and time and amount 'of payments; and in any event, the placing of such mortgages on the premises was not brought to the notice of the -daughter, as far as the evidence shows.

The defendant alleges estoppel to claim any interest on the part of plaintiff. Estoppel to be available to the defendant, must be based on a showing that he has been innocently misled into an injurious change of position, by some act or representation of his sister. 16 O. Jur. Estoppel, Sec. 34, p'. 586. No such showing has been made in the instant case.

The defendant in his answer filed at the trial, alleges that he advanced certain moneys to his parents, from time to time, from 1933 to the death of his mother, upon the faith and security of the mother’s title to the premises. No citation of authority is necessary, to sustain the principle that a deed absolute, in equity will be treated as in the nature of a mortgage only, if justice and equality so require, where the evidence discloses that the deed was taken as security.for the payment of money advanced. Wilson v. Giddings, 28 Oh St 554; Fleming v. Minx, 4 Oh Ap 406.

The defendant in his last answer alleges that in 1943 he paid $4415.81 in discharge of a valid mortgage on the premises, and thereby became subrogated to the rights of the mortgagor. The evidence bears out this claim. Equity would require that he resort to and exhaust the other 3/5ths interest in the premises, before the 2/5ths interest of his sister, be subjected to said claim. 26 O. Jur. Marshaling Assets, Sec. 2, p. 99. The balance of the $7000.00 note and mortgage received by the defendant, must be taken solely from the other 3/5ths interest and his sister’s 2/5ths interest is not liable therefor.

The defendant alleges that his mother conveyed the premises to him in consideration of the monies previously advanced to his father and mother for their maintenance and support, and the further consideration of his promise to pay such monies as were necessary for her future support and that he did thereafter in fact, pay from time to time for her support the sum of $5581.32. Certainly the record discloses no evidence to sustain any claim that the deed was delivered pursuant to any such agreement with his mother. In fact, the defendant did not even attempt to testify to any such agreement.

“Where a party to an action offers himself as a witness, but is not asked to testify concerning a matter of importance to himself in such action, the presumption is that he was not inquired of concerning such matter because his answers would have been unfavorable to him.” Grant v. Pittsburg and W. R. Co., 10 C. C. 362, affirmed 54 Oh St 660.

The Court is convinced, that the deed from his mother must be considered in equity as in the nature of a mortgage to secure moneys advanced from time to time by the defendant to his mother; and that the defendant must look to the other 3/5ths interest to satisfy said advances, since the 2/5ths interest of the plaintiff is not liable for said advances secured by the deed.

The defendant identified many checks which he said were for advances to support his father and mother. He also identified a cognovit note, Exhibit 190, dated July 26, 1945, signed by his mother and payable to himself in the sum of $1000.00 (R. 119). When the Court asked the witness if the note covered expenses shown by his previous checks, his counsel said “No,” but the defendant admitted the note did cover such advances shown by his previous checks but he didn’t know how many. The -defendant also admitted the same thing was true with reference to the $7000.00 note and mortgage. (R. 120.)

The defendant thus shows he knew how to secure his advances by a mortgage on the premises, and, he must be considered as having agreed with his mother at that time on the amount due him, and for which he looked to said promises for security. In other words, his claims were liquidated when the amount due was ascertained. 1 Cyc. 334; 25 Cys. 1444. Any collateral benefit received by the payee (such as specific security) which might raise a technical legal consideration, although apparently it was less than the amount due, constitutes full satisfaction. Brooks v. White, 2 Met. 285, cited with approval in Harper v. Graham, 20 Ohio, 105, 115. The note and mortgage transaction is in the nature of an accord and satisfaction on account stated.

“It has been too often decided to be an open question that where such a dispute exists, and one party to the dispute tenders an amount in full settlement of the entire claim and it is accepted and a receipt given in full by the opposite party, that this constitutes an accord and satisfaction, and that the party thus receipting will not be allowed afterward to litigate about the matter — the law favors the voluntary settlement of disputes.” Coal Co. v. Sunday Creek Co. 12 N. P. (N. S.) 641, 645; Seeds Grain and Hay Co. v. Conger, 83 Oh St 169.

The mother who gave the mortgage being dead and defendant admitting that the mortgage covers advances made by previous checks, but he didn’t know how many, the defendant should not be permitted to question the settlement contained in the mortgage. He is on strict proof in the instant case.

The defendant admits (R. 126) he did not tell his sister when he paid off the balance on the mortgage on the premises. He doesn’t know whether he or the mother later told his sister he had paid it off (R. 126); but plaintiff says he told her about paying off the mortgage in 1944 when she was in New York (R. 146 and 148), at the time he received a telephone call from their mother, and his sister says this was her first knowledge that he had paid the mortgage off.

It, therefore, stands to reason that she was right that her brother never told her about the $7000 note and mortgage, (R. 150) and that she never knew of the same until after the death of her mother, when she and Mr. Eagleson went to the court house to look at the records. (R. 150-a.) Why all this secrecy with his only sister concerning the affairs pertaining to their home property?

This mortgage still remains uncancelled of record, notwithstanding he received a deed for the premises in 1946. This would indicate he might be uncertain as to his rights under the deed, and did not want to lose the security of the mortgage made and filed in 1943.

The defendant was very uncertain as to when and how his sister learned of the deed given him by the mother for the property (R. 130, 131, 132). On the other hand his sister was certain it was in January, 1950, when she was in New York, at the time she gave him the tax bills and the $5500.00 check dated January 19, 1950. (R. 151, 152, 153, 154.) Again, the question arises why all the secrecy with his sister concerning the family home? In the light of all thé circumstances, his excuse for withholding the deed from record for three years, becomes quite unsatisfactory and creates a strong suspicion that he did not want the sister to learn of the deed to the family home. It gives a strong impression of sharp dealing with the sister which does not appeal to the conscience of a Court of Equity.

Certainly the sister knew of no adverse claim by her brother under this deed until January, 1950, and she had no knowledge of the $7000.00 mortgage until after her mother’s death. The statute of limitations and laches, begin to run, if at all, at those times as far as the adverse claims of her brother to the home property were concerned.

The defendant identified Exhibits 128-134, certain checks of his as covering hospital expenses for his mother (R. 109, 110) but they show on their face that they cover hospital expenses of his mother’s sister, Mrs. Olivia Amolch. These checks total $380.49. This mistake no doubt reflects the hasty and last minute changes of defense as shown by the answer filed during the trial.

Exhibits 114 and 115, two checks to Ohio National Bank for $500.00 each, should not be allowed without further proof, since he says they were for deposit in a joint checking account of his mother and himself. (R. 115, 134, 135). Also plaintiff’s Exhibit B, a check to the defendant for $5500.00 from his mother under date of January 19, 1950, should be deducted from his alleged advances, in the light of the record, since he says he deposited this check in said joint checking account on the same day (R. 34), while the Court has since learned that on January 24, 1950, said $5500.00 check was deposited in the personal checking account of the defendant and no other deposits were ever made in said account which was closed April 30, 1951.

The defendant says (R. 126) that he paid off the mortgage and took it out to his mother, but Exhibit 179, the letter from the Savings Association shows that they mailed the canceled mortgage to his mother.

Exhibit 144, a check to Radiohio for $465.04, which defendant says was for a television he purchased for his mother, should not be allowed without further proof, since there is no showing she ordered it, and the Court cannot believe that the Vice President of the Columbia Broadcasting Company in charge of the television network, was looking to the home property for security when he purchased a television for his mother under date of November 28, 1950, in the light of his testimony that he called her religiously every day for five years at a certain hour of the day, regardless of where he was. (R. 128.)

Much is made of the sister’s letter to the defendant, written near Thanksgiving in 1944, while they were both in New York, in which she refers to the mother trying to keep the property up for the defendant and she used the words “you paid for.” His sister learned on her trip for the first time that he had paid the mortgage off which had required a payment of $35.00 monthly; she may have referred to that payment as a person inexperienced in such matters. In any event, the defendant could not have been misled by any such comment, since the record as of Thanksgiving, 1944, showed he had not advanced his mother any money since the date of the $7000.00 mortgage of August 8, 1943, and there was no conceivable basis for him to consider at that time, that equitable or otherwise, he had paid for this home property that cost $15,000 twenty-three years before. The letter of the sister also stated she wanted the mother to sell out and “use her own money.” She may have referred to the proceeds of the mother’s share in the property, and again the defendant was in no way misled, and there is much reason to believe he knew full well that his sister had her own money in this property.

1. The Court finds that the plaintiff is the equitable owner of an undivided 2/5ths interest in said premises.

2. The Court finds that the indebtedness of the mother to the defendant consists of the $7000.00 mortgage of August 8, 1943, the $1000.00 cognovit note of July 26, 1945, and the sum of $7590.33 secured by the deed from his mother.

3. The Court finds that the deed from the mother is in the nature of an equitable mortgage.

4. The Court finds that the total indebtedness of the mother to defendant, due to advances, must be paid out of the other 3/5ths of said premises and the 2/5ths interest of the plaintiff is not liable for any of said sum, except the sum of $4415.81 used to pay off the mortgage to the Savings Association, to which said sum the defendant was subrogated; and that the said other 3/5ths. interest must be exhausted, before the 2/5ths interest of the plaintiff may be used to pay said $4415.81 or any part thereof.

The Court is satisfied that said other 3/5ths interest will be far more than necessary to satisfy in full the total claims of the defendant, and that, therefore, the 2/5ths interest of the plaintiff will not be subject to the payment of any part of the $4415. 81 advanced to pay off the Savings Company mortgage.

As part of the history of the country, the Court must take judicial notice that lands leased years ago were leased at much less than their present value. 17 O. Jur. Evidence, Sec. 58, p. 78; Ludlow v. Brenter, 3 C. C. 82; Lanman v. Upper Arlington, 50 Abs 546; Common Knowledge, 17 O. Jur. Evidence, Sec. 16, p. 42. Leonard v. State, 100 Oh St 456.

The Court, therefore, orders the defendant to convey to the plaintiff, legal title to an undivided 2/5ths interest in fee simple in the premises described in the petition; and in the event that said conveyance is not made within thirty days from the Entry of said decree herein, said decree itself shall act as said conveyance.

Entry accordingly with exceptions to defense counsel.


author: By WISEMAN, J:

text:
    VINCENT, Plaintiff-Appellant, v. DIVINE PEACE MISSION MOVEMENT, Inc. et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2175.
    Decided April 3, 1952.
    Jacobson & Durst, William Poliak, of Counsel, Dayton, for plaintiff-appellant.
    Shaman, Winer & Shulman, Paul Ziegler, of Counsel, Dayton, for defendants-appellees.
   OPINION

By WISEMAN, J:

This is an appeal on law and fact from the judgment of the Common Pleas Court of Montgomery County. The matter has been submitted to this Court on the transcript of the evidence taken in the lower court.

In his petition plaintiff alleges that on May 13, 1949, he conveyed by quitclaim deed his undivided one-half interest in a piece of real property to his mother, Dora Lyes, and that subsequently she conveyed by quitclaim deed an undivided one-half interest in said real estate to the Divine Peace Mission Movement, Inc. Plaintiff alleges that the members and officers of the Divine Peace Mission Movement, Inc., exercised undue influence over the mother in securing the quitclaim deed. Plaintiff further alleges that at the time he executed the deed to his mother, she promised to reconvey the undivided one-half interest to him upon his request. Plaintiff prays that the deed from Dora Lyes to the Divine Peace Mission Movement, Inc. be declared null and void, and that Dora Lyes be declared a trustee for the plaintiff for the undivided one-half interest for the use and benefit of the plaintiff.

The defendants filed separate answers in which they deny the material allegations in plaintiff’s petition.

Plaintiff testified that at the time he conveyed his undivided one-half interest to his mother, he was having trouble with a woman with whom he had been cohabiting, and that the transfer to his mother was for the purpose of preventing this woman from securing an interest in the property. He further testified that the mother promised that when the trouble ended she would reconvey the property to him. The mother just as strenuously denied ever having made such agreement with the son and testified that she had purchased the property on contract, and for many years had made the payments thereon, and that when the trouble arose between her son and his “common law wife” she asked the son to give the deed to her, stating that she had paid for the property and that she was the real owner of the entire interest. There is some evidence of an inconsequential character which lends support to both contentions. However, the attorney who represented Dora Lyes in this and other transactions, after securing a waiver of privilege by Dora Lyes, testified at some length giving the details and purpose of the transaction between the son and mother. His testimony supports the contention of the mother in every particular. This attorney bears a fine reputation at the Bar and his veracity was not questioned.

The burden of proof in this case rests on the plaintiff to prove by clear and convincing evidence, and as some authorities state the rule, to prove by clear, certain and convincing evidence, that he was entitled to an order of the court engrafting a parol express trust on the deed which was absolute on its face. Vol. 40, O. Jur., Page 168, Sec. 34. In our opinion the evidence is not strong enough to warrant the Court in finding that a resulting trust arose by reason of any payments which the plaintiff claims he made on the purchase price.

We do not believe that the plaintiff has sustained the burden by the proper degree of proof.

Judgment for defendants.

HORNBECK, PJ, MILLER, J, concur.