author: Spear, C. J.

text:
    Andrews, Assignee, v. Johns et al.

      Assignee's fees — Term “proceeds of real estate sold” defined — Section 6S57, Revised Statutes — Assignee not entitled to percentage on creditor mortgage, when.

    1. The term “proceeds of the real estate sold,” found in section 6357, Revised Statutes, implies money arising from the sale actually received and accounted for as such by the assignee. Upon money so received he is entitled to the percentage compensation named in the section above cited.
    2. But, where the land Offered for sale by the assignee is bid in by a mortgage creditor whose mortgage is the first l;en, and the bid is less than the amount of the debt so secured, taxes and costs, the mortgagee is not required to pay over to the assignee, nor into court, the amount of such bid, and in such case the assignee is not entitled to the percentage compensation provided in said section.
    (Decided October 11, 1898.)
    Error to the Circuit Court of Butler county.
    The issue in the controversy is between the plaintiff: in error, as assignee of Mary Johns, insolvent, and Albert Hughes, defendant in error, mortgagee, and creditor of the insolvent, and is prosecuted upon exceptions to the assignee’s report and account filed in the probate court of Butler county, tried on appeal in the court of common pleas.
    On request the court of common pleas stated its findings of fact and law separately as follows :
    That on July 8, 1893, Mary Johns, Jr., and Susan Johns, made an assignment under the statute for the benefit of creditors to Allen Andrews, who gave bond in the sum of $20,000.00 and duly qualified as said assignee and executed said trust, and on said day filed a petition for the sale of said real estate; that said real estate was at the time encumbered by mortgages as appears of record, and that the assignee,,at the request of the mortgagees and the assignors, delayed the sale of said property until the same was advertised and sold as appears of record. That no other property or assets of any character came into the hands of said assignee, and that said real estate was bid off and purchased at the sale so made by said assignee by said defendant, Albert Hughes, who held the first mortgage lien on said real estate, and that the same sold for the sum of $5,900.00, which was not sufficient to pay the taxes, costs and mortgagee claim of said Albert Hughes. That the proceeds of said sale were distributed by the order of the probate court as appears of record. The court finds that said assignee in and about the sale of said property and in the discharge of his said trust rendered services as follows: Piling petition for sale of real estate, obtaining waiver and service of summons, consultations with mortgagees, appraisement, advertisement of sale, offering for sale and auctioneering same, conference and consultations with bidder and mortgagees and their attorneys in regard to said sale, negotiations and consultations with mortgagees and creditors in regard to setting aside appraisement,. advertising, offering for sale and auctioneer’s services for second time, re-advertising and offering for sale the third time and auctioneer’s services, making sale, procuring orders, attendance at court, looking after real estate and proceedings in court, confirmation of sale, deed and distribution of proceeds and that said services were of the value of $250.00. And that said assignee presented to said probate court as required by law a bill of items for said services, which bill of items was duly verified as required bylaw. And that in the discharge of said trust said assignee employed as his attorneys Messrs. Morey, Andrews & Morey, who rendered legal services in and about the sale of said real estate and discharge of said trust at the instance and request of said assignee as follows: The legal services, filing petition, precipe and waiver and obtaining order of appraisement, making return of same, obtaining order of sale, advertising sale, attending sale, obtaining alias order, advertising and offering for sale the second time setting aside appraisement, obtaining new order of sale, advertising and attending sale the third time, confirming sale, order for deeds and distribution, services on motion of Albert Hughes, and all legal services in said assignee’s application to sell real estate, and that said services were of the value of $148.00 which were duly paid by said assignee to said attorneys. And that there is no fund in the hands of said assignee with which to pay for said legal services of said assignee except the proceeds of the sale of said real estate.
    And the court from the foregoing facts finds as conclusions of law that said assignee should be allowed the said sum of $148.00 so paid by him to his attorneys, and that he should be allowed as commission the sum of $33.70 on so much of the proceeds of said sale collected by said assignee for the payment of costs and taxes, but that he is not entitled to be allowed any commission on the balance of the proceeds of said sale as the same were retained by said Albert Hughes on his mortgage lien; and that said assignee is not entitled to receive anything by way of extraordinary services so rendered by said assignee for the sole reason that there is no fund out of which to pay the same except the proceeds of said sale, which said Albert Hughes, as the purchaser of said real estate, is entitled to retain on his mortgage lien.
    It is therefore considered and adjudged by the Court that said assignee pay and distribute said $5,900 being the proceeds of said real estate as follows :

      First — Taxes, $135.22.

      Second — Costs including $148.00 attorney fees ; all costs amounting to $346.10.

      Thwd — To said assignee as commission (his claim, for extraordinary services being disallowed), $33.70.

      Fourth — -To said Albert Hughes on his mortgage lien the balance of the proceeds of said sale being $5,384.98. '
    It is ordered that the costs of' this appeal be paid by said Allen Andrews, assignee, and said Albert Hughes, each paying one-half thereon, and execution is awarded therefor.
    Motion for new trial was thereupon heard and overruled, to all which the assignee excepted. On error to the circuit court, prosecuted by the assignee, the judgment of • the common pleas was affirmed, and to obtain a reversal of that judgment this proceeding is instituted.

      Morey, Ancto'ews <& Morey, for plaintiff in error.

      Alex F. Hume and P. O. Conklin, for Albert Hughes.
    The arguments of counsel and cases cited are sufficiently indicated in the opinion. — Reporter.
   Spear, C. J.

The legal question for this court to decide is this: Is an assignee, under an assignment for the benefit of creditors, entitled to a percentage compensation upon the bid of the purchaser of real estate sold by such assignee and bid in by the holder of a mortgage, the first lien, whose claim exceeds in amount the amount of the bid?

It is contended by plaintiff in error that an assignee is entitled to such commission because the statute awards it, and if the language of the statute does not in terms allow it, yet fairness and justice to the assignee require such construction be given the statute, for otherwise the assignee is denied compensation for services which the law compels him to render and which inure to the benefit of the mortgagee.

Sections of the Revised Statutes bearing upon the subject are 6350 to 6350c, 6351,6352, 6356 and 6357. These sections provide that the assignee shall proceed at once to convert all the assets received by him into money and to sell the real and personal property assigned to him, either for cash or upon such other terms as the court [the probate court] may order, of which sale due return shall be made to the court, and such sale shall be set aside or confirmed as the court may order; and if confirmed the court shall order the assignee to make a deed to the purchaser for the real estate sold.

The court shall order the payment of all incumbrances and liens upon any of the property sold,, or right or credits collected, out of the proceeds, thereof according to priority; provided that the* assignee may in all cases where the real estate .to be sold is incumbered with liens, or where any questions in regard to the title, or the dower estate of the wife or widow of the assignor require a decree to settle the same, commence a civil action therefor in the common pleas court or probate court of the proper county making all persons in interest parties to such proceeding’s and upon hearing the court shall order a sale of the premises the payment of incumbrances, and the proceeds of the real estate so sold, after the payment of liens and incumbrances shall be reported to the court by the assignee and disposed of as provided in this chapter. Creditors shall present their claims within six months to the assignee for allowance and immediately after the expiration of said six months the assignee shall file in the court a report of the claims presented with the amounts thereof, etc. At,the expiration of eight months an account shall be filed with the court by the assignee, containing a full exhibit of all his doings up to the time of filing.

Whenever on settlement the same shall show a balance remaining in the hands of the assignee, subject to distribution among the general creditors, a dividend shall be declared by the probate judge payable out of such balance equally among all the creditors entitled, in proportion to the amount of their respective claims against the assignor, of the making of which dividend and of the time of payment thereof notice shall be given. Before any dividend is declared, the assignee may be allowed the following commission upon the amount of the personal estate collected and accounted for by him, and of the proceeds of the real estate sold under an order of court for the payment of debts; which shall be received in full compensation for all his ordinary services, that is to say : For the first thousand dollars at the rate of six per centum ; for all above that sum and not exceeding five thousand dollars at the rate of four per centum; and for all above five thousand dollars, at a rate of two per centum. And in all cases, such further allowance shall be made as by the court shall be considered just and reasonable for his actual and necessary expenses, and for any extraordinary services not required of an assignee in the common course of his duty ; also such reasonable pounsel fees as may be necessary for the proper administration of said assignment, whether performed by the assignee as attorney, or such other as may be employed by him, but that no such further allowance, extraordinary expenses or services, or attorney fees, shall be allowed by the court unless a bill of items be filed showing such actual and necessary or extraordinary expenses and services, or attorney fees, together with the affidavit of the person incurring such expenses or performing-such services, showing that the same were performed for and were necessary to the assignment, and that the amount charged is reasonable, etc.

It will be observed that the provision is, where the land sold is incumbered, that the incumbrance be satisfied. The court shall order payment of all incumbrances and liens out of the proceeds, is the language, but the ultimate object sought is the satisfaction of the liens; payment, if proceeds arise from the sale, but in any event satisfaction and cancellation in order that the assigned estate may be settled. The term “proceeds” when used in connection with sale, as the lexicographers seem to agree (see Webster, the Standard, Rapalje and Bouvier), means a sum of money derived from the sale of property. If money be derived from the sale, then it has yielded “proceeds,” and an order distributing such “proceeds” may follow; if none have been so derived then there are no funds in the hands of the court for distribution. If this conclusion be correct then it would be fair to construe 6357 as though the words “collected and accounted for” had been inserted after the words “proceeds of real estate,” and the meaning of the whole section would be that the commission is to be computed on the money obtained from both sources. But where no proceeds have been collected and accounted for, the proper order would seem to be one which would provide for such necessary costs as the statute authorizes, and satisfaction of the liens, and for a conveyance which will vest in 'the purchaser all the title of the assignor at the time of the assignment, and thus close out the trust as regards that piece of property, and not an order attempting to distribute that which is not within the control of the court. Now where' the land exposed for sale by an assignee, which is incumbered by a mortgage constituting a first lien has been bid in by the mortgagee for a sum less than the amount owing on his mortgage, there can be no “proceeds” in the sense of money for distribution, for the legal effect of- the bid and sale, followed by confirmation and deed, is only to satisfy the mortgage, and the debt pro tanto, and vest in the mortgagee, purchaser, the equity of redemption of the assignor, and is not to produce a fund for distribution. It has never been the law or practice in this state to require a mortgagee, purchasing under such circumstances, to pay the amount of his purchase either to the officer making the sale, nor into court. The reason is that having already the legal title subject to the equity of redemption of the mortgagor, the purchaser is in a sense the owner, and requires only a satisfaction in a legal manner of the equity ^ of redemption, and of any subsequent liens, followed by possession, in order to give Mm a complete title to the land. To require the mortgagee to pay over to the assignee in money the amount of his bid, to be followed by a repayment to him by the assignee of all or the major part of the sum would not only be the requiring of a vain thing, a ceremony illogical and useless, but it would in many cases work downright injustice. It is easy to conceive a case, indeed common knowledge embraces many, where the mortgagee has invested his entire property in the mortgage, and, being without adequate credit, has not power to acquire the means for the making of such deposit, and, if such deposit were a condition of acceptance of his bid, would be barred entirely from, bidding and be compelled to stand by and see the property purchased by a stranger upon terms which would be destructive of his interests, and yet be powerless to interpose. It would also give color to the pretense that after having mortgaged his property,- and received full value from the mortgagee, the mortgagor, by resorting to some twist of the law,' could practically destroy, or at least greatly impair, the security of the mortgage, a proceeding shocking to the moral sense as well as contrary to the analogies of the law in other cases. True, a' mortgagee invests his funds subject to the law as to foreclosure, but this fact does not warrant an unnecessary sacrifice of his interests, even in part.

If no “proceeds,” within the fair construction of the statute, arise from the sale, then it would seem to follow, necessarily, that there can be no percentage commission. This form of compensation is analogous to that provided for administrators, and is, primarily, for the risk, responsibility and trouble involved in the collecting and disbursing of money. Piatt v. Longworth, 27 Ohio St., 159. If no money is collected and disbursed, then no percentage is earned. See also Shaw, Trustee, v. Building Assn., 6 O. C. C. Rep., 41. This conclusion is in accord with the practice in sales by sheriffs and master commissioners, where the right to poundage is involved, a practice based upon the statute, and prevalent, so far as we are aware, in all sections of the state.

The cases of Ingham, v. Lindemann, 37 Ohio St., 218, and of McLain v. Simington, same volume, 660, are cited in support of the plaintiff’s contention. We think they do not sustain it. The case first named does not touch upon the point of percentage at all, while in the other the commissions referred to. do not appear certainly to have been percentage on money collected, although probably they were, but if they were such, it still does not appear that the mortgaged property was bid in by the mortgagee. In the absence of such showing the presumption is that it was not, for we can hardly think that the court would have omitted mention of so important a circumstance, had it been the fact.

A case more nearly analogous to the one at bar is that of Stone v. Sttong, 42 Ohio St., 53. The controversy in this court arose upon the record of a proceeding by an administrator in the probate court to sell land to pay debts, where the land which was incumbered by mortgage and judgment Hens, was bid in at the sale of the administrator by the owner of the mortgage, which was the first lien. After holding that, where proceedings for such sale are properly instituted, the executor or administrator, under section 6165, Revised Statutes, is entitled to compensation and charges for making the sale, to be first paid before applying the proceeds to the mortgage or other liens, and that such compensation is to be computed by the per centum authorized by section 6188, on the money arising from such sale to be administered, yet: “If a mortgagee, whose lien is fixed by the court, becomes the purchaser at such sale, the executor or administrator is not entitled to a per centum compensation on that part of the purchase money applicable to the satisfaction of his mortgage.”

The two sections referred to are as follows:

Section 6165. “The money arising from the sale of real estate shall be applied in the following order: First — To discharge the costs and expenses of the sale, and the per centum and charges of the executor or administrator thereon, for his administration of the same. Second — To the payment of mortgages and judgments against the deceased, according to their respective priorities of lien, so far as the same operate as a lien on the estate of the deceased at the time of his death; which shall be apportioned and determined by the court, on reference to a master or otherwise. Third — To the discharge of claims and debts, in the order mentioned in this title.”

Section 6188. “Executors and administrators may be allowed the following commissions upon the amount of the personal estate collected and accounted for by them, and of the proceeds of the real estate sold under an order of court for the payment of debts, * * * which shall be received in full compensation for all their ordinary services, that is to say,” etc., etc.

It will be noted that this provision for compensation is identical with that provided for assignees by section 6357. The commission is to be upon the amount of the personal estate collected and accounted for by them, and of the proceeds of the real estate sold, and is to be in full compensation for all their ordinary services.

But it is contended that this decision was induced by the term “money arising from the sale of real estate,” found in section 6165, and but for that the court would have placed a different construction upon section 6188, where the term “proceeds” is used. With this assumption we cannot agree. We have already found that when applied to sales the term ‘ ‘ proceeds ’ ’ means money arising from the sale, and we are to conclude that the legislature used the terms in the two sections as synonymous, which, in proper terminology, they are. Nor is there any expression in the opinion which gives color to the claim of counsel. Says Johnson, J., onpag-e 57: “His per centum is to be computed on the money arising from the sale for his administration of the same. Where no money arises to be administered there is nothing on which to compute commissions. This percentage was intended to compensate for the trouble and responsibility of collecting and paying out the money. * * * Here the mortgagee is the purchaser, and so far as the purchase money was applicable to her liens, it operated as a satisfaction of her mortgagees. ”

It is further contended that in the case of an assignee the sale of real estate is peremptory, while with an administrator it is optional. We know of no such distinction. The statute, section 6136, does not seem to countenance it, and no decision is cited in its support. We do not believe any can be found. The administrator has no occasion to resort to the real estate unless he ascertains that the personal estate will be insufficient to pay the debts, but if he does ascertain that fact his duty to proceed to sell appears to be just as imperative as in the case of an assignee.

Upon the proposition that by the construction of the sections affecting assignments here made, an injustice results to the assignee in that he is denied compensation for labor which he is required to perform, it would seem sufficient to say, as suggested by counsel, that the hardship is not greater than in the case of a second mortgagee who forecloses his mortgage only to see the first mortgagee take all the proceeds, leaving his expenses to be borne without any results; or the case of an administrator, as in Stone v. Strong, where the first mortgagee is the purchaser. Besides, the assignee is not compelled to perform the services. He accepts the trust voluntarily and with whatever risk may attend its performance. If he finds it burdensome, or unremunerative, he may at any time resign. In response to this the suggestion is offered that the situation in respect to the question of compensation would not be altered by a resignation, for it would then become the duty of the court to appoint a trustee who would be entitled to compensation upon the same basis. Of course such trustee would be entitled to whatever compensation the law gives, as well as an assignee. In the administration of the estates of deceased persons the statute permits, under certain circumstances, that administration be committed to one of the principal creditors, and the practice to so appoint is not uncommon. Possibly practical difficulties might stand in the way of the appointment of a mortgage creditor as trustee of an insolvent estate, but every consideration of fairness would entitle him to a potent voice in the selection of such trustee, and in making such choice it would not be difficult, it is here suggested, to find persons abundantly competent who would be satisfied to do the work for the chance presented of obtaining the legitimate compensation allowed by law. Ordinarily the duties involve routine work only, and that which may be performed by persons of fair acquaintance with legal business, and only rarely do they involve work of a difficult order, or calling for the exercise of more than ordinary talent or experience. Presumptively, at least, the provisions of the statute relating to assignments were enacted in the interest of creditors, and it is the duty of all courts to give such construction to the statute, and to direct the administration of the trusts in such manner, as will reasonably secure this end. Complaints are common of objectionable practices in this respect in some localities where, it is charged, the effort seems to be to conduct assignments as though they had been provided, primarily, for the benefit of assignees and their attorneys. The faith of the people in the impartial administration of the law by the courts would be enhanced by a correction of the abuse, if it exists, and by the adoption of methods of administration by which the rights of creditors may be fully protected and enforced, and the trust estate not depleted by extravagant charges and costs; and no injustice to any would result.

It is not necessary to a decision of this case to refer to the order of distribution made by the probate court, but, nevertheless, comment upon it seems pertinent. It orders the assignee to make distribution of $5,900, being proceeds of the real estate sold, of which he was ordered to pay to the mortgagee, purchaser, $5,384.98. No such fund was in the hands of the assignee, and it is difficult to see what purpose such form of order accomplishes save to confuse. The inference from it would be that the amount of the bid had been paid to the assignee by the mortgagee, or that he was obliged to pay. Neither assumption was true. The court having found that the land was bid off by the owner of the first lien for a sum less than his debt, taxes and costs, an order that the purchaser pay such taxes as were due, and such costs as might properly be required of him under the statute, which would be such costs, and such only, as were made necessary by the foreclosure, and upon such payment a deed be made by the assignee, would have met the situation as it existed and worked out the proper legal result. True, the statute speaks of the probate court ordering payment of incumbrances, liens, etc., but this presupposes that proceeds have actually been received. Where, however, a lien., as in this case, has been satisfied by the bid, but the debt not satisfied, the making of an order in such form is wholly unnecessary and is an incongruous performance.

Whether or not the assignee was entitled to a commission on the costs and taxes paid by the mortgagee, purchaser, we need not inquire as no cross-petition has been filed complaining of the order in that respect.

We think the circuit court was not in error in affirming, the judgment of the common pleas to the effect that, as against the first mortgagee, purchaser, the assignee was not entitled to percentage compensation, and the judgment will be

Affirmed.


source: Caselaw Access Project

author: Burket, 3.

license: Public Domain

text:
    Wright et al. v. Franklin Bank et al.

      Lands held in trust — Not liable for debts of trustee — Attachment lien has preference over unrecorded mortgage — Requisites of valid mortgage — Deed of assignment for creditors — Sections 4106, 4138 and 4184, Revised Statutes,

    1. Lands held in trust cannot be sold.on execution for the payment of the debts of the trustee; and judgments ag-ainst such trustee are not liens upon such lands.
    2. Any vested interest in lands, whether held by legal or equitable title, may be attached and sold, as upon execution, to pay the debts of the owner.
    3. A mortgage upon an estate, or any interest therein, legal or equitable, to be valid as against third persons, must be signed, acknowledged, witnessed and recorded, as provided in sections 4106 and 4133, Revised Statutes.
    4. An attachment levied upon an equitable interest in real estate has preference over an unrecorded mortgage on such interest.
    5. A deed of assignment for the benefit of creditors, in due form, made and delivered in a sister state where the parties at the time resided, and conveying real estate situated in this state, takes effect from the time of its delivery, and has preference over an unrecorded mortgage upon such real estate.
    6. As against subsequent bona fide purchasers without notice, a deed of conveyance of lands duly executed, must be recorded as provided in section 4134, Revised Statutes, but such record is not required as against other parties.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Hamilton county.
    The facts as disclosed by the record necessary to a full understanding of this case are as follows:
    In the year 1892, Thomas B. Youtsey and others became the owners of a tract of land in Hamilton county, Ohio, known as the Hyde Park Syndicate property.
    The interest of Mr. Youtsey in the property was somewhat greater than the undivided one-sixth part thereof. The legal title to the property was taken in the name of James E. Mooney, in trust for the persons composing the syndicate. As such trustee he had full power to sell, convey or lease the property, or any part thereof, at such times, to such persons, and upon such- terms as he might deem best.
    To enable Mr. Youtsey to pay for his interest in the property, the plaintiff in error, James C. Wright, executed as maker, for the accommodation of Mr. Youtsey, promissory notes, payable to the order of the latter, which were discounted by the First National Bank of Newport, Ky.,of which Mr. Youtsey was the cashier at the time, and of which the other plaintiff in error, George P. Wilshire, is now the receiver.
    The proceeds of the notes so discounted were applied by Mr. Youtsey to the payment of his proportion of the purchase money of the syndicate property.
    Prior to January 16, 1895, the total amount of the notes executed by Mr. Wright for the accommodation of Mr. Youtsey, and discounted and used by the latter in paying for his interest in the property mentioned, was'$14,650.00.
    January 16, 1895, to secure Mr. Wright, Mr. Youtsey executed and delivered to him the writing of which the following is a copy:
    “January 16, 1895.
    James C. Wright has in the First National Bank several notes payable to my order. All these notes were made by him for the purpose of enabling me to raise money with which to pay my interest in the Hyde Park Syndicate in Hamilton county, Ohio, and I have used said notes for that purpose. My interest in said syndicate is liable for the payment of said notes. The interest of said James C. Wright is that for the execution of said notes by him and all previous and subsequent similar ones he is to have from the profits of said venture, six thousand dollars. This does not include money loaned by him to me in said venture, for which he holds my notes.
    T. B. Youtsey. ”
    The notes attempted to be secured by said instrument, five in number and amounting to $14,-650.00, have never been paid.
    The First National Bank of Newport, Ky., ceased to do business after January 16, 1897, and January 21, 1897, the plaintiff in error, George P. Wilshire, was appointed its receiver and qualified as such.
    January 18, 1897, the defendant in error, The Franklin Bank, began an action in the common pleas court of Hamilton county, Ohio, against Thomas B. Youtsey, to recover $20,000.00, and in the same case, caused a writ of attachment to issue, and to be levied upon Youtsey’s equitable interest in the Hyde Park Syndicate property.
    January 19, 1897, by the confession of Mr. Youtsey, it obtained a judgment against him for the amount of its claim.
    January 21, 1897, Mr. Youtsey, who was a citizen of Kentucky, and a residentof Newport, Campbell county, in that state, executed a deed of assignment, for the benefit of his creditors, to the defendant in error, C. W. Nagel. This deed of assignment was recorded January 22,1897, in the ■county clerk’s office of Campbell county, Kentucky, and January 25, 1897, in the recorder’s office of Hamilton county, Ohio.

      January 23, 1897, the plaintiff in error, James C. Wright, began an action in the common pleas court of Hamilton county, Ohio, against Thomas B. Youtsey, to recover of him the sum of $25,717.81.
    Embraced in the sum sued for by Wright, and forming a part of his cause of action, was his claim against Mr. Youtsey for $14,650.00 and interest, the amount of the liability of Mr. Youtsey to Mr. Wright, as accommodation maker, of the five notes hereinbefore mentioned, the proceeds of which Mr. Youtsey had used in paying for his interest in the Hyde Park Syndicate property. By confession of Mr. Youtsey, Mr. Wright obtained a judgment against him immediately for the amount sued for, upon which an execution was issued forthwith and levied upon the interest of Mr. Youtsey in the Hyde Park Syndicate property which had been attached by the Franklin Bank.
    The day that the judgment was obtained and the execution levied, January 23, 1897, Mr. Wright began the action, from the judgment in which the petition in error in this case is prosecuted, against the Franklin Bank, Mr. Nagel, assignee, and others, to enforce and marshal the liens against Youtsey’s interest in the Hyde Park Syndicate property.
    In his petition and the amendment thereto Mr. Wright asserts and relies upon the lien which he claims to have obtained by virtue of the writing of January 16, 1895, signed by Mr. Youtsey and hereinbefore set out.
    The judgment which Mr. Wright obtained against Mr. Youtsey, he subsequently assigned to the First National Bank of Newport, and the plaintiff in error, George P. Wilshire, receiver of that hank, is entitled to the benefit of said assignment, and to the lien, if any, which Mr. Wright obtained by the above writing of January 16, 1895, and he was, therefore, by supplemental pleading, made a party to the action in the lower court and filed his answer and cross-petition, and he is before this court as one of the plaintiffs in error.
    Upon the hearing of the cause b.y the circuit court, it adjudged that the Franklin Bank had a superior lien upon Mr. Youtsey’s interest in the Hyde Park Syndicate property by reason of its attachment, and that C. W. Nagel, assignee of Mr. Youtsey for the benefit of his creditors, upon the sale of Mr. Youtsey’s interest, would be entitled to the balance of the proceeds of sale of the property, after the satisfaction of the claim of the Franklin Bank. The petition in error in this court is prosecuted to reverse the judgment of the circuit court.

      Mackoy <& loioman, for plaintiffs in error.
    The writing of January 16, 1895, signed by ' Youtsey, created an equitable lien upon his interest in the Hyde Park Syndicate property in favor of James C. Wright, and the words clearly express an intention on the part of Youtsey that Wright should have a lien from the date of the writing.
    It is an established rule that a writing or agreement must be construed so as to uphold and sustain it and not to make it nugatory. It must be held always that the parties to an agreement intended to accomplish something and not to do a vain thing.
    The question is always one of the intention of the parties. Jones on Mortgages, sections 162, 166 ; Bank v. Johnson, 47 Ohio St., 310; 3 Pomeroy’s Eq. Jur., section 1237; Peackham v. Haddock, 36 Ill., 38; Chadwick v. Clapp, 69 Ill., 119; Pinch v. Anthony, 8 Allen, 536; Eskridge v. Mc Clure, 2 Yerger, 84; Taliaferro's Ex’r v. Barnett, 37 Ark., 511; Mitchells. Wade, 39 Ark., 377.
    As the interest of Youtsey in the Hyde Park Syndicate property is equitable, the lien of the Frankin Bank, by virtue of its attachment, and of Nagel, assignee, under the deed of assignment to him, are also equitable.
    Neither the Franklin Bank, which is an attaching creditor, nor Nagel, assignee for the benefit of the creditors of Youtsey, is a purchaser for a valuable consideration, and therefore their rights and interests in and to the Hyde Park Syndicate property are not greater and can not rise higher than those of Youtsey himself. Haldeman v. H. & C. R. R. Co., 2 Handy, 101.
    Nagel, the assignee of Youtsey for the benefit of his creditors, is not a purchaser for valuable consideration. Hodgson v. Barrett, 33 Ohio St., 63; Morgan v. Kinney, 38 Ohio St., 610; Mannix, Assignee, v. Purcell, 46 Ohio St., 102.
    The rights of an assignee are not greater than those of his assignor, or the creditors of his assignor. Betz v. Snyder, 48 Ohio St., 492.
    The equitable lien of Wright, upon Youtsey’s interest in the Hyde Park Syndicate property, is older and more meritorious, and therefore superior to the lien of the Franklin Bank, and to the interest of Nagel, assignee, under the deed of assignment.
    As between equities the older will prevail, unless the junior be more meritorious. Hume v. Dixon, 37 Ohio St., 66.

      The thing that the legislature of Ohio intended to and did. do, by section 4133, was to protect the legal title holder, viz: a person who was not required to resort to equity to procure the legal title. Stansell v. Roberts, 13 Ohio, 148; Mayhew v. Coombs, 14 Ohio, 428; Fosdick v. Barr, 3 Ohio St., 471; Bloom v. Noggle, 4 Ohio St., 45; Erwin v. Shuey, 8 Ohio St., 509 ; Ohio Valley Bank v. Iron Co., 30 W. L. B., 382; White v. Denman, 1 Ohio St., 110 ; Downer v. Bank, 39 Vt., 25 ; Wailes v. Cooper, 24 Miss., 208. In Kentucky, the law in force now and at the time of the decisions hereinafter mentioned, is Kentucky Statutes, section 497; Morton v. Robards, 4 Dana, 258; Bank of Ky. v. Vance's Admr., 4 Littell, 169; Swigert v. Bank of Ky., 17 B. Mon., 268; Forepaugh v. Arnold, 17 B. Mon., 625; Le Neve v. Le Neve, 3 Atk., 646; Van Meter v. McFadden et al., 8 B. Mon., 435; Kemper v. Campbell, 44 Ohio St., 216; Story on Eq. Jur., section 1231 ; Ewing v. Arthur, 1 Humphrey, 537; Legard v. Hodges, 1 Vesey, Jur., 477; Ex parte Arkins, 2 Younge & Collyer, 536 ; Union Bank of London v. Kent, 39 Ch. D., 238; In re Lady Way’s Trust, 2 De Gex, Jones & Smith, 365; Story’s Eq. Jur., section64d; Bispham’s Equity, 5th ed., section 624; Phillips v. Phillips, 4 De G., J. & F., 218; Pomeroy’s Eq. Jur., sections 385 and 386; Bispham Equity, section 43 ; Pomeroy on Eq. Jur., section 386.

      Healy de Brannan and Burch <& Johnson, for Franklin Bank.
    A long line of decisions in Ohio has established the principle that such an instrument as that held by plaintiff in error has no effect as against a subsequent deed, mortgage, assignment for benefit of creditors, judgment, or attachment. The cases are: Stansell v. Roberts, 13 Ohio, 149; Mayham v. Coombs, 14 Ohio, 428; Holliday v. Franklin Bank, 16 Ohio, 534; White v. Denman, 1 Ohio St., 110 ; Fosdick v. Barr, 3 Ohio St., 471; Bloom v. Noggle, 4 Ohio St., 46 ; Erwin v. Shuey, 8 Ohio St., 510; Bercaw v. Cookerill, 20 Ohio St., 163; ha Therniley v. Peters, 26 Ohio St., 471; Building Ass'n v. Clark, 43 Ohio St., 427.
    Aside from the express language of section 4106, it is well settled that equitable estates are within the operation of the recording acts. While it is true that there are some earlier cases, among which are the Kentucky cases cited by Mr. Mackoy, in which it is held that equitable estates were not governed by the registry laws, the modern rule is almost universally to the contrary. Webb on Record Titles, sections 19 and 36, and 2 Pomeroy on Eq. Jur., section 649 and notes ; Bank v. Clapp, 76 N. C., 482; Mann v. Alexander, 9 Ark., 112; Haskell v. Sevier, 25 Ark., 152.
    It was held in Graves v. Graves, 6 Gray, 391, that an attaching creditor of an equity of redemption, takes precedence of a previous assignment of the equity which, though recorded, was not acknowledged, and was therefore improvidently admitted to registration. United States Ins. Co. v. Shriver, 3 Md. Chan., 381; Digman v. McCullom, 47 Mo., 372; Tarbell v. West, 86 N. Y., 280; 5 Ohio Hisi Prius, 61.
    Under the statutes and decisions in Ohio, relating to attachments, an attaching creditor obtains a lien at law upon the attached property, even though it be an equitable estate in land. Section 5555, Revised Statutes; Carty v. Festermacher, 14 Ohio St., 457; Bank v. Nash, 1 Handy, 153 ; Finnett v. Burt, 2 Handy, 202.
    The suit brought by Mr. Wright against Youtsey, in which the judgment for money was recovered, was wholly inconsistent with, and contradictory of, the existence of any trust in favor of Wright. Youtsey could not be at the same time a trustee of this land for Wright and a debtor to Wright for the money expended in the purchase of land; and the suit was brought by Mr. Wright, treating Youtsey not as a trustee of the land for Wright, but as a debtor to Wright, and upon that theory a judgment for money was recovered against Youtsey. When a man imposes a lien upon his own property for the benefit of another person, the former does not become a trustee for the latter; he does not hold the land in trust for the other, but holds the land for himself, charged with a lien in favor of the other person.

      Gustavus II. Wald; Chm-les B. Wilby and Z, J. Crawford, for defendant, C. W. Nagel, Assignee.
    Mr. Mackoy in- his argument uses the term “ equitable mortgage ” in several different senses which should be discriminated one from another. In his brief he adopts the language of Jones on Mortgages, section 162: “Whatever the form of a contract may be, if it is intended thereby to create a security, it is an equitable mortgage.” That however is not the law in Ohio unless the instrument claimed to be an equitable mortgage has been executed and recorded as prescribed by our statutes. An “ equitable mortgage ” in this sense is not, properly speaking, a mortgage, but a contract to give a mortgage,® which contract equity will specifically enforce. Bloom v. Noggle, 4 Ohio Sfc., 46; Bank v. Johnston, 47 Ohio St., 306; Dodd v. Bartholomew, 44 Ohio St., 171; Hurd v. Robinson, 11 Ohio St., 232; Strang v. Beach, 11 Ohio St., 283.
    The recording or delivering for record (of a mortgage) is part of the execution; and hence before that act is done the instrument is not a mortgage. Holliday v. Franklin Bank, 16 Ohio, 536; Mayham v. Coombs, 14 Ohio, 435; Fosdick v. Barr, 3 Ohio St., 471.
    Why these propositions should be true of mortgages of the legal estate, and untrue of mortgages of the equitable estate is not readily seen. White v. Denman, 1 Ohio St., 110; Jones on Mortgages, section 476 and 138. White & Tudor’s L. C. in Eq., 4th Am. ed., vol. 2, pt. 1, 203-4, Lincoln B. & L. Assn. v. Hass, 10 Neb., 581; Laughlin v. Braley, 25 Kan., 147; Christian v. Am. F. Land Mort. Co., 92 Ala., 130.
    The reasons for holding mortgages of an equitable title or interest to be within the registry-act are, however, stronger in Ohio than in any other state, by reason of the changes made by the legislature in the language of the act. The precise point contended for by Mr. Maekoy, has, so far as we can discover, been raised but three times before this court, and in cases none of which he cites. Of these the first is Paine v. Mason, 7 Ohio St., 198; Philly v. Danders, 11 Ohio St., 490; Churchill v. Little, 23 Ohio St., 301.
    In all these cases the contention of counsel was based, and in the case last cited the decision of the court rested, upon the ground that the operation of the statute was limited by its own terms, verbis ypsissimis, to instruments conveying, affecting or incumbering land in law.

      The statute then in force was the act of June 1, 1831, 29 O. L., 346, S. & C., 458. In 1887, (Revised Statutes 4106,84 O. L., 132-3) the statute was amended to read as follows: “A deed, mortgage or lease of any estate or interest in real property shall be signed by the grantor, mortgagor or lessor in the presence of two witnesses, etc.” These changes in the language of the act cannot for a moment be supposed to be other than intentional and deliberate; the legislature is presumed to have acted with a full knowledge of the decisions of the Supreme Courton the subject. Buckley v. Stephens, 29 Ohio St., 620.
    It is true, as stated by Mr. Mackoy, that the deed of assignment made to Nagel was not, and could not be filed for record in the probate court of Hamilton county. Revised Statutes, section 6335, requiring deeds of assignment to be filed in the probate court of the county, of the residence of the assignor, relates, and can only relate, to assignments made by residents of Ohio. It is impossible to suggest any probate court in Ohio, in which this assignment made by a resident of Kentucky should have been filed under the requirements of the statute. It is conceded that the deed of assignment to Nagel complied with all the requirements of the laws of Ohio as to conveyance of lands. Under it, therefore, Nagel succeeded to all the rights of his grantor, in trust for creditors. Assignments for benefit of creditors, made by nonresidents covering real estate in Ohio, have, if the deed of assignment complied with the requirements of our statutes as to conveyances, always been given full effect and force by this court. Sortwell v. Jewett, 9 Ohio, 180; Johnson v. Sharp, 31 Ohio St., 611.

      It is true, also, that the deed of assignment to Nagel was not “filed for record in the recorder’s office of Hamilton county, Ohio, until January 25, 1897, two days after Wright had begun his suit to enforce and marshal liens. ” But equally true it is, that as to Wright, the,deed of assignment need never to have been recorded at all. Deeds have to be recorded only as against subsequent purchasers for value, a position not claimed, and which could not be claimed for right. Irvin v. Smith, 17 Ohio, 226; Betz v. Snyder, 48 Ohio St., 492.
    That mortgages void against creditors, are void against an assignee for creditors, is a proposition conclusively established by the decision of this court. Irwin v. Shuey, 8 Ohio St., 509; Straman v. Rechtine, 40 Bull., 74.
   Burket, 3.

The defendants in error do not seem to contend that the body of the writing1 of January 16, 1895, signed by Mr. Youtsey, is insufficient in form to create a lien upon his interest in the syndicate property, and for the purposes of this case it may be conceded to be so.

To properly dispose of this case it is necessary to consider the principles of law applicable to the subject matter in hand generally which we now proceed to do.

It has been held by this court that where an owner of land contracts to sell the same to another person, such vendor holds the title in trust for the purchaser, to the extent that the purchase money has been paid. Churchill v. Little, 23 Ohio St., 308; Manley v. Hunt, 1 Ohio Rep., 257; Minns v. Morse, 15 Ohio, 569; Lefferson v. Dallas, 20 Ohio St., 68 ; Butler v. Brown, 5 Ohio St., 211.

It has also been held that lands held in trust for another cannot be levied upon and sold upon execution against the trustee to pay his debts; and judgements against the trustee are not liens upon the lands held by him in trust for another. Manley v. Hunt, 1 Ohio Rep., 257.

In that ease the court say : “It would be productive of much mischief to make trust estates liable to judgments against the trustees. Such a principle never has been, and we trust never will be recognized in this state.”

That case was followed and approved in Butler v. Brown, 5 Ohio St., 215.

From these holdings it follows that lands held in trust cannot be taken in execution against the trustee for the payment of his debts. But lands held subject to liens, whether legal or equitable, may be taken under execution or attachment and sold with the liens resting thereon ; or if no purchaser can be found, the liens, including the executions and attachments, maybe marshaled and the proceeds of the sale distributed according to the rights of the parties.

Lands held in trust for another are thus preserved for the beneficial owner free from the debts of the trustee, but lands burdened with liens are liable to be seized in execution for the payments of the holder’s debts. This difference between trusts and liens reconciles many cases which otherwise seem in conflict.

Lands held by a properly executed, but unrecorded deed, are also free from the debts of the grantor, whether attempted to be reached in an assignment for the benefit of creditors made by him, or upon an attachment, judgment or execution against him. The title under such a deed is good as against everything except a subsequent bona fide purchaser without notice.

By section 5374, Revised Statutes, lands and tenements including vested interests therein, are made subject to the payment of debts, and liable to be taken on execution and sold at judicial sale; and by virtue of section 5555, Revised Statutes, lands and tenements, whether held by legal or equitable title, are made liable to be seized and sold under attachment for the payment of debts.

To make the statutes as to real estate, and all interests therein, consistent, the General Assembly in 1887, so amended sections 4106, 4133 and 4134, Revised Statutes, as to require deeds and mortgages of any estate or interest in real property to be signed by the grantor or mortgagor, and acknowledged before a proper officer in the presence of two witnesses, and to be recorded in the office of the recorder of the county. Mortgages so executed, whether on an estate in real property or on only an interest therein, take effect from the time of the delivery to the recorder, and deeds so executed, conveying the estate or only an interest therein, that is, an equity, take effect from delivery, except as against subsequent bona fide purchasers without notice, and as against such the deed must be also recorded.

These amendments of the statutes require all instruments in the nature of a mortgage, either legal or equitable, to be signed, acknowledged, witnessed and recorded; and until so signed, acknowledged, witnessed and delivered for record, the same are without effect as to third persons.

The statutes on this subject before the amendments of 1887, were substantially different from the present acts, and the decisions of this court construing those statutes are not always applicable to the statutes as now enacted.

Coming now to this case, it is clear that the paper signed by Mr. Youtsey was intended to create only a lien in favor of Mr. Wright,- and not a trust. The paper cannot be construed to create both a lien and a trust, as they are the opposites of each other. In a trust the property is held for another, while in the case of a lien it is held by the holder for himself, but burdened with a charge, commonly called a lien, in favor of another. The law applicable to liens must therefore rule this case, and not the law applicable to trusts.

Neither does this case depend upon the law of purchasers for value, but upon the law of the priority of an attachment or deed of assignment for the benefit of creditors, over a defective unrecorded mortgage. By virtue of section 5555, Revised Statutes, the interest in the syndicate property, even though it was only an equity, could be attached and sold as upon execution, and the purchaser would receive a g’ood title to such interest in the syndicate, and the Franklin Bank and the assignee under the deed of assignment would receive the proceeds of the sale without the aid of a court of equity. Should there be no bidder, the liens could be marshaled and the proceeds of the sale distributed, but the lien of the attachment and the conveyance under the deed of assignment, would remain in full force as legal rights fastened upon the estate held by an equitable title, and would both have preference over the defective and unrecorded mortgage held by Mr. Wright. If Mr. Wright’s paper had been acknowledged, witnessed and recorded it would have operated as a legal mortgage upon an estate held by an equitable title, and would have taken priority over the attachment and deed of assignment; but as the case stands his paper created no charge or lien, legal or equitable, upon the interest in the syndicate property, as against third parties asserting legal rights.

The deed of assignment was executed and delivered in the state of Kentucky, where all the parties resided, and conveyed property in Hamilton county in this state. Such a deed could not be filed with the probate judge and take effect from the time of its delivery to him as required by section 6335, Revised Statutes. The deed in this case was in due form and took effect from the time of its delivery to the assignee. Johnson v. Sharp, 31 Ohio St., 611.

This was two days before the suit to marshal liens was commenced, and therefore, no question of Us pendens ari ses in this case. True the deed of assignment was not recorded in the office of the recorder of Hamilton county until two days after the commencement of the action to marshal liens, but such record is only necessary as to subsequent bona fide purchasers without notice, and there is no such purchaser in this case. The deed of assigment, therefore, passed title from its delivery.

Much reliance is placed by counsel for plaintiff in error upon the case of Kemper v. Campbell, 44 Ohio, St., 210, but that case is in full accord with the views here expressed. There is no error in the record.

Judgment afivrmed.


author: Williams, J.

text:
    Carter et al. v. Day et al.

      Estate heretofore held in common — Line of descent not broken by partition — Application of section 4158, Revised Statutes — Construction of partition by mutual releases — Competency of evidence.

    1. The line of descent is not broken by partition of an estate theretofore held in common, whether the partition be made in a legal proceeding, or by the interchange of mutual releases. In either case the title of each parcener in the share set off to him in severalty remains the same as that by which his undivided interest in the land was held.
    2. Where the estate in common came by descent, devise, or deed of gift, the parcel allotted to a parcener who dies seized of the same descends according to the provisions of section 4158, of the Revised Statutes.
    S. When partition is made by mutual releases, they should be read and construed together, in the light of the circumstances attending their execution; and it is competent to show that their only purpose was to accomplish the partition, and no other consideration passed between the parties, though a pecuniary consideration be expressed in the deeds.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Richland county.
    On the thirtieth day of September, 1892, Joseph Day and Ellzey Day broug’ht suit in the court of common pleas of Richland county, against Merchant Carter and others, for the partition of sixty acres of land situated in that county. The petition alleges that the plaintiffs are the owners in fee simple of the undivided eight-ninths of the land, and the defendants, as tenants in common with them, own, in various proportions specified, the other undivided one-ninth. The defendants, by their answer, claim title to the whole of the land, and denjr that plaintiffs have any interest or estate in it. The circuit court, where the cause was tried on appeal, found the issues for the plaintiffs, and ordered partition accordingly. The reversal of that judgment i s sought here. A further statement of the case is contained in the opinion.

      W. L. Sewell; H. P. Sewell and Cummings <& McBride, for plaintiffs in error.
    The plaintiffs below objected to the introduction of any of the partition deeds except the deed to Martha Day, which was offered and read below by plaintiffs themselves.
    In construing a deed the court places itself as nearly as possible in the situation of the contracting parties; and their interest will be ascertained in the same manner as in the case of jny other contract.
    If the interest is not then apparent from the deed other rules of construction may be adopted. Vol. 3 Washburn Real Prop., 408 (5th ed.).
    Considerations are of two kinds, “good” and “valuable.” “Good” is raised by the relationship of marriage or blood. “Valuable,” either money or money’s worth. Vol. 2, Washburn, 420.
    This action being for the partition of real estate under section 5756 of the code, it does not differ materially from ejectment under 5781 and 5782, and there is neither reason or principle why plaintiff’s rights may not be determined by substantially the same rules of evidence. Burrage's Lessee v. Beardsley, 16 Ohio, 438; Holmes v. Sullivan, Miami Common Pleas, 14; White v. Brocaw, 14 Ohio St., 339.
    No parol evidence was needed to explain that transaction, as it explains itself. The record of said will and of said nine deeds being- in evidence and being the same land as devised by will, and the same as was takén by said Martha Carter under her deed, and being’ the nine component parts of the original whole, we have partition merely with the rules incident thereto without further proof, and no new rights are acquired. Dawson v. Lawrence, 13 Ohio St., 543.
    Such partition may be effected by parol, after long acquiescence. Cummins v. Nutt, W., 713; Conklin v. Brown, 8 Abb. N. Y. Pr. N. S., 345; Tabler v. Wiseman, 2 Ohio St., 208; McBain v. McBain, 15 Ohio St., 337 ; Freeman and Wife v. Allen, 17 Ohio St., 527.
    It is not sought by the plaintiffs in error to defeat the deed, but to determine the statutory descent of the property. Steele v. Worthington, 2 Ohio, 182 ; Swisher v. Swisher, Wright’s Reports, 755; Mitchell v. Ryan, 3 Ohio St., 377; 33 Ohio St., 212; 50 Ohio St., 125; Harrison v. Castner, 11 Ohio St., 339.
    The introduction of parol testimony showing the real consideration, was a mutual division of the property instead of moneyed one recited, does not tend to defeat the deed, but to determine the order of descent from Martha Day. Hodges v. Hall, 6 Am. St. Reps., 199; 80 Maine, 281; 48 Penn., 491; 88 Am. Dec., 468; 59 Conn., 117; 21 Am. St. Reps., 80; 16 Conn., 383; Washburn Re., vol. 2, pp. 337, 338 and 441; Smith, Guardian, v. Carver, 36 Bulletin, 189.
    And certainly a mutual partition having- been made of the land in question by the heirs and legatees of Robert Carter, deceased, would not certainly create any greater title, and coxild not change the ancestral character of the property by the mutual partition and releases among themselves any more than by statutory partition; no new title is acquired. Pillsbury v. Dugan, 9 Ohio, 117 ; McBain v. McBain, 15 Ohio St., 337; Tabler v. Wiseman, 2 Ohio St., 207; Bank v. Wallace, 4 Ohio St., 168; Freeman v. Allen, 17 Ohio St., 527; Giaque’s Settlement of Decedent Estates, 783 and notes.

      Bradford c§ Morehouse and Donnell & Ma/rriott, for defendants in error.
    Defendants insist that the consideration paid for the land by Martha (Carter) Day was property she had inherited and therefore the court should declare this title came not by descent.
    The court looks to the immediate title to determine the nature of the estate. Clayton v. Drake, 17 Ohio St., 368; 6 C. C. R., 570; 3 Circ. Dec., 589; Brewer v. Hunt, 18 Ohio St., 312; Lessee of Prichett v. Parker, 3 Ohio, 394; Patterson v. Lamson, 45 Ohio St., 77; Chancellor Kent (4 Com., 373); Freeman v. Allen, 17 Ohio St., 530.
    The rule asserted in Tabler v. Wiseman, 2 Ohio St., 207, and in McBain v. McBain, 15 Ohio St., 337, applicable to partition proceedings where the title is located under the statute does not apply to the deliberate conveyance of the parties. Hershizer v. Florence, 39 Ohio St., 525; Bank v. Wallace, 45 Ohio St., 167.
    The title held by Martha was by deed from her brothers. This deed shows a consideration of $3,000.00 and if true makes the title a title by purchase.
    Oral evidence cannot be introduced to change the title. Serviss v. Stockstill, 50 Ohio St., 418; 17 Ohio St., 622; Wilkinson v. Wilkinson, 24 Ves. Eq., 379; Burrage's Lessee v. Beardsley, 16 Ohio, 439; 2 Herman, on Estoppel, sections 624-5; Shelby v. Alston, 3 Ves. Jr., 338 and 120; Stembel v. Martin, 50 Ohio St., 525; Shepherd v. Taylor, 3 Atlantic R., 382; Orr v. White, 6 N. E. R., 909 (Ind.).
   Williams, J.

The cause was submitted to the trial court upon admitted facts and uneonflieting evidence which show that Robert Carter, Sr., died in 1865, seized of a tract of land situated in Richland county, containing nearly six hundred acres, which he devised by will to his nine children, all of whom were then living, “to be divided equally between them.” These children, on the second day of April, 1869, made amicable partition of the land by the inter-change of deeds of release, by which the sixty acres in controversy in this case were set off in severalty to the testator’s daughter, Martha Carter, as her equal share, and she relinquished her interest in like shares to each of the other children. Martha was married to Marcus Day in 1866, and died in 1887, intestate and without issue, seized of her tract of sixty acres. Her husband survived her, and in 1890, conveyed the land to his children by a former marriage, and died in 1892. His grantees are the plaintiffs in the action below; and their claim is that, on the death of his wife Martha, he took by inheritance from her an estate in fee simple to the eight-ninths of the land so held by her under the partition, which estate, by his conveyance, became vested in them. The defendants in the action are the surviving brothers and sisters of Martha, and the representatives of those now deceased; and it is their claim that the whole of the land of which she died seized descended to them, subject only to-a life estate of her husband therein. Which one of these conflicting claims must prevail depends upon the nature of the title by which Martha held the land at the tine of her decease, and that depends upon the effect of the partition. If she thereby acquired a new title to eight-ninths of the land, that interest passed to the surviving husband in fee simple under section 4159, of the Revised Statutes, and was conveyed by his deed to the plaintiffs below. On the other hand, if, notwithstanding the partition, she continued seized of her title as devisee, then its descent is controlled by section 4158, under which the husband took an estate for life only, and, on his death, it went to her brothers and sisters and their representatives, the plaintiffs in error.

A partition of land by action, the authorities' maintain, creates no new title to the shares set off to the parceners in severalty. While its effect is to locate the share of each in his allotted parcel of the land, and extinguish his interest in all the others, the title by which he holds his divided share is the same as that by which his undivided interest in the estate in common was held. Tabler v. Wiseman, 2 Ohio St., 208; McBain v. McBain, 15 Ohio St., 337. The effect upon the title is different where, in such proceeding, it is found impracticable to divide the land among the tenants in common and there is an election by one or more of them to take the land or some parcel of it at the valuation returned by the appraisers. The grounds of the distinction are satisfactorily stated in Freeman v. Allen, 17 Ohio St., 527, and need not be repeated here. , But no satisfactory reason can be assigned why partition by metes and bounds among’ tenants in common, by the interchang’e of mutual releases, where each one receives no more than his proper share of the land, should have any different effect upon the title from that of a like partition under the statute. The former is a convenient and less expensive mode of attaining’ the same result, and the difference is in the method only, and not in the legal consequences. The latter is not less effectual than the former in extinguishing the interest of each parcener in the parcel allotted to the others, and in transferring to each the interest of the others in his parcel. The controlling fact common to both is, that each parcener receives in severalty no greater estate than he before held in common.

With regard to the effect of partition in either mode upon the title, it is said in the case of Freeman v. Allen, supra, that a tenant in common has the right to have his share “located in a distinct part of the premises by proceedings in partition,' or the same thing might be effected by mutual releases. No new title would be acquired in either case, and the estate in the land would remain the same as before. The tenancy in common only would be dissolved and the estate of each thereby become separate.” True, the question we have before us was not involved in that case; but it was directly presented and decided in the case there cited, Orosthwait v. Dixon, 5 Ad. & Ell., 834. In that case one of two parceners aliened his moiety in fee whereby the alienee and the remaining parcener became tenants in common. After-wards by deed of partition between the alienee and the remaining parcener the land was divided by metes and bounds and each took a moiety in severally. The question was whether by that deed the parcener took anything as purchaser so as to break the line of descent. It was held that he did not. Lord Denman, C. J., said; “ It is admitted that, if the deed of partition had been made between the parceners themselves, the descent would not have been broken. Com. Dig., Parcener (c., 15). But it is said that, inasmuch as one of the parties to the deed was a stranger in blood, whatever was taken from him by the parcener must be taken by purchase. And doubtless this would be so if anything was taken from him, but we are of opinion nothing was taken by the parcener from the alienee under the deed. The effect of it was only that the parcener had it by a divided moiety in severalty discharged of any right of the alienee, instead of an undivided moiety in common; but he had the same estate in the land as before.” In Com. Dig., vol. 5, p. 240-1, under the title of Parceners, c. 15, the rules on this subject are stated to be that: “Upon partition made, the occupation and descent, which before were in common, shall be several and distinct,. But a coparcener, after partition, continues in the same privity of estate as before, for it does not convey, or make any alteration in the estate. So parceners shall be in from the common ancestor as before, for the partition does not make any degree.”

The precise question we have here was decided by this court in the unreported case of- Smith v. Carver. In that case Clara Bell Carver, an adopted daughter of Henry Carver, took by descent from him, as tenant in common with his children. Partition was made by mutual releases of land so inherited, and afterward Clara Bell died intestate, without issue, and unmarried. The children of the ancestor survived her, and she left brothers and sisters of the half blood — children of her father, who brought partition, claiming that she took by purchase the land set off to her in severalty by the partition deeds, and that it descended to them. This claim was contested by the children of Henry Carver, who contended the land descended to them as ancestral property. The courts below held that the estate was not changed by the partition from one by descent to an estate by purchase, and therefore, its course of descent was controlled by section 4158, of the Revised Statutes ; and that holding’ was- affirmed by this court. See Smith v. Carver, 36 W. L. B., 189, 55 Ohio St., 642.

If the testator in this case had divided his land into nine parts and by his will given one part to each of his children, the parcel given to Martha would have descended to the plaintiffs in error. Instead of doing that he gave each of his children an equal undivided share in the whole body of his land, leaving the division to be so made among-themselves. This they did by the execution of deeds of release to each other; and we are of opinion that by the partition thus made no new title was acquired, and consequently, the course of descent was not changed.

We have examined the cases of Brower v. Hunt, 18 Ohio St., 312; Hershizer v. Florence, 39 Ohio St., 516; Bank v. Wallace, 45 Ohio St., 168; and other cases cited by counsel for the defendants in error, and find they do not raise the question here under consideration, nor conflict with the conclusion arrived at in this case.

It is urged, however, that the judgment below should nevertheless be affirmed because, if certain incompetent evidence were excluded, the deed to Martha Carter would appear to have been made for a money consideration actually paid, and her estate in the land one acquired by purchase. That deed was introduced and relied on by the plaintiffs below; and against their objection, the defendants put in evidence all of the deeds made to accomplish the partition. Each one recites a pecuniary consideration of the same amount. The defendants also proved that in fact no money was paid, but that the only purpose of the conveyances was to make amicable partition of the land, and each was the sole consideration for the others. As sustaining their contention that the evidence was incompetent counsel for the defendants in error cite and seem to rely largely on the case of Burrage v. Beardsley, 16 Ohio, 438, and other cases of like import. That case holds that, “where a deed purports to be executed for a valuable consideration, and is impeached by proving that no consideration passed, it cannot be sustained by proving that it was executed for natural love and affection.” But this rule, it is said in Steele v. Worthington, 2 Ohio, 182, 187, is applicable only where the deed is impeached for fraud. And it was held in Mitchell v. Ryan, 3 Ohio St., 377, that a deed not impeached for fraud may be shown to be a gift, notwithstanding the consideration expressed in the deed is a pecuniary one. Where the deed is not impeached or attacked, the recital of the consideration has no other effect than as an admission, and like other admissions is open to explanation. Harrison v. Castner, 11 Ohio St., 339; White v. Brocaw, 14 Ohio St., 339. Here the validity of the partition deeds was not attacked by either party; nor was the evidence to which the objection was made designed or calculated to impeach them, aor yet to sustain them, but rather to prove that the real transaction was nothing- more than an amicable partition, and that the recital of a uniform consideration in each deed was adopted as a means of showing that each tenant in common actually received no more than his equal share of the estate. And all of the deeds having been made at the same time, as parts of a single transaction, for the accomplishment of a common purpose, the partition of the land among the parties, their admission in evidence was proper, so that they might be considered and construed together, in the light of the circumstances attending their execution, and according to the intention of all the parties.

Judgment reversed and judgment for the plaintiffs in error.


author: Minshall, J.

text:
    Kihlken v. Kihlken et al.

      Owner of ancestral lands conveys to another to delay creditors— Agreement to reconvey — Grantor dies — Grantee reconveys to ■widow of former grantor — Brothers and sisters of reconveying grantee have no rights in law or equity in the land.

    1. Where an owner of ancestral lands conveys them to another, on a written agreement that he will, upon request, reconvey them, the ancestral character of the land is thereby destroyed; and if a request to reconvey is made, but the grantor dies before it is executed, without issue, but leaving a widow, and brothers and sisters, a conveyance to the widow is a proper execution of the trust, and the brothers and sisters of the deceased grantor have, as heirs, no legal or equitable title to the land.
    2. Where an owner of ancestral lands, to hinder and delay a possible creditor, conveys them to a third person, who after the death of the grantor, without issue, conveys them to his widow, the brothers and sisters of the grantor can not, for this additional reason, maintain an action against her to compel a conveyance of the lands to them. They stand. in the shoes of the grantor and have no rights in law or equity to the lands, but such as could have been asserted by him; and he, by reason of his fraud, had none.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Ottawa county.
    The plaintiffs below, Ferdinand Kihlken et al., as the brothers and sisters and only heirs at law of Henry B. Kihlken, deceased, brought suit against Frederika Kihlken, his widow, to have a conveyance to her of certain described lands, made by John H. Kihlken, set aside, and such other relief as they 'in equity might be entitled to. After a judgment in the common pleas, the defendant appealed to the circuit court, where the case was tried on the pleading’s and evidence, and judgment rendered in favor of the plaintiffs requiring the defendant to convey the land to them, subject to a life estate in herself. Error is prosecuted here to reverse this judgment. At the request of the defendant the court made a finding of the facts and its conclusions of law thereon. The finding of facts is as follows:

      First — That the plaintiffs are brothers and sisters and are the only heirs at law of one Henry B. Kihlken, who died intestate on the twenty-eighth day of February, 1894, leaving the defendant his widow.

      Second — That on the twenty-first day of May, 1888, said decedent, Henry B. Kihlken, was seized in fee simple of the following described real estate: situated in the township of Carroll, county of Ottawa and state of Ohio, and known as and being the south half of the northeast quarter of section twenty-nine, township seven, range fifteen, containing eighty acres of land more or less, and that said Henry B. Kihlken acquired said real estate by devise from his- father.

      ThwcL — That on the twenty-first day of May, 1888, said Henry B. Kihlken executed and delivered to one of the plaintiffs, John H. Kihlken, a deed of the aforesaid real estate, whereby he conveyed the legal title of said real estate to said John H. Kihlken; that as the sole consideration for said conveyance, the said John H. Kihlken and Henry B. Kihlken entered into a contract in writing whereby it was agreed by and between said John H. Kihlken and Henry B. Kihlken that Henry B. Kihlken had that day sold and conveyed to said John H. Kihlken the real estate above described; that the said John H. Kihlken agreed to reconvey said premises to said Henry B. Kihlken at any time on demand made by him in person; that should the said Henry B. Kihlken, die before making such demand, then said agreement to be void and of no effect; that said agreement was executed contemporaneous with said deed, and was a part of the same transaction.

      Fov/rth — That on the fifteenth day of January, 1894, the said Henry B. Kihlken duly performed all the conditions of said agreement on his part to be performed and duly demanded of the said John H. Kihlken a reconveyance of the said real estate to him, Henry B., as provided in the said contract, which reconveyance the said John H. was then ready and willing to make, and thereafter and .at all times remained and was ready and willing to make. That on the fifteenth day of January, the said Henry B. and John H. Kihlken agreed that a few days later they would meet in Port Clinton, and have a proper deed of conveyance drawn up, and the said John H. agreed he would then execute the same. And at the time agreed upon the said JohnH., together with his wife, went to Port Clinton for the purpose of meeting his brother Henry B., and for the purpose of executing a deed of conveyance to him in accordance with the terms of the said written contract, and also in accordance with the terms of the verbal arrangement made on the fifteenth day of January, 1894. But the said Henry B. Kihlken did not meet John H. at Port Clinton at the time agreed upon, but was on that day confined at home by sickness, which soon after caused his death, and which occurred before a reconveyance of the said property was made to him by the said John H. Kihlken.

      Fifth — That said Henry B. Kihlken, on said day, May 21, 1888, for the purpose of defrauding the said Caroline M. Miller out of her just claim against him as aforesaid, and to hinder and delay her, the said Caroline M. Miller in collecting any judgment that she might recover against him in any bastard proceedings that she might institute against him, made said conveyance of the aforesaid real estate to the said John H. Kihlken and without any other motive or purpose or consideration, and the said John H. Kihlken received said deed to said premises for the purpose of assisting his said brother to defraud said Caroline M. Miller, and to hinder and delay her, the said Caroline M. Miller, in collecting her just claim against the said Henry B. Kihlken.

      Sixth — That at the time said conveyance and agreement to reconvey was entered into, the said Henry B. Kihlken was an unmarried man, and that afterwards, to-wit, on the twenty-eighth day of June, 1893, the defendant, Frederika Kihlken, and said Henry B. Kihlken were married and that said marriage relation existed until his death on February 28, 1894.

      Seventh — That on or about the eighth day of March, 1894, the said Frederika Kihlken, by her father, Henry Sehwiek, requested the said John H. Kihlken to convey said real estate to her, and that the said John H. Kihlken did on said day convey said real estate to said Frederika Kihlken by a warranty deed and that said conveyance was made by the said John H. Kihlken, in ignorance of the law, and was made by him unadvisedly, improvidently and without due deliberation and under the supposition that he was carrying out the intention of the parties as provided for by the terms of said contract: And that the said Frederika Kihlken never paid to said John H. Kihlken any consideration whatever for said conveyance, and no .consideration for said conveyance has ever passed between the said Frederika E. Kihlken and John H. Kihlken.”
    As a conclusion of law the court found that the conveyance of May 21, 1888, by Henry to John Kihlken, was made in trust for Henry; and that the plaintiffs, as heirs at law of Henry, are entitled to a reconveyance of the property from the defendant, subject to a life estate in herself. The defendant excepted and prosecutes error here for the reversal of the judgment.

      O. L York, for plaintiff in error.
    Our position as to the law of this case is this : The conveyance by Henry to John, having’ been made by 'Henry and received by John for tbe purpose of defrauding Caroline M. Miller, gave John tbe absolute legal title as against Henry and all tbe world, except Henry’s creditors and as to them John would be regarded as holding the title in trust, but as to Henry he did not hold the title in trust but held the absolute title, and he had a right to sell it give it away or do with it as he pleased, and Henry was forever estopped from claiming the land and he could not have been heard setting up his own fraud to avoid the conveyance. As between John and Henry, the fraudulent conveyance was an absolute conveyance, and no court would have given relief to Henry in securing a reconveyance of the property, but the court would have left him with his own fraudulent transaction where it found him, and treated John as the absolute owner as though he had paid full consideration for the land; 'and for these reasons, the conveyance of the land to John destroyed its ancestral character as ancestral property, and as John was the owner, and had a right to do with it as he pleased, and having paid nothing for the land, he had a right to give it to plaintiff in error, and as he did give it to her voluntarily, he has not mistaken his legal rights or those of his brothers or sisters, and no one has been deprived of any title in the property which they might have claimed, except John, and while he is a party to the transaction and nothing out, and no fraud has been practiced on him, and his act has been voluntary, there is no foundation in equity for the relief which hq seeks. Brower v. Hunt, 18 Ohio St., 311; Temper v. Barton, 18 Ohio, 418; Burgett v. Burgett, 1 Ohio, 469; Douglas v. Dunlap, 10 Ohio, 162; Brigel v. Starbuck, 34 Ohio St., 285; Johnson v. State, 42 Ohio St., 210; Nickols v. Holdridge, 10 Ohio, 230; White v. Brocaw, 14 Ohio St., 339 ; Barton’s Lessee v. Heirs of Morris, 15 Ohio, 408; Bump on Fraudulent Conveyances, pp. 444d, 447. ,
    The rule is, in order that a mistake may come within the cognizance of a court of equity, it must be shown to be: First, material or the moving cause of the complaining party’s action; second, mutual or shared in by both parties to the transaction ; thwd, unintentional, and fourth, free from negligence. Material — Kerr on Fraud and Mistake, 399; Grimes v. Sanders, 93 U. S., 798 (3 Otto, 55); Dambman v. Schuting, 75 N. Y., 55; Setthemmer v. Killip, 75 N. Y., 282; Story’s Eq. Jur., 151; Segur v. Tingley, 11 Conn., 134; McFerren v. Taylor, 3 Cranch (U. S.), 270; Hubbard v. Hobson, Beecher’s Breese (Ill.), 190. Mutual Mistakes— Ramsey v. Smith, 32 N. J. Eq., 28; Ludington v. Ford, 33 Mich., 123 ; Ins. Co. v. Davis, 131 Mass., 316 ; Iron Co. v. Iron Co., 107 Mass., 290 ; Emery v. Mohler, 69 Ill., 221. Unintentional Mistakes-Dunham v. New Brittain, 55 Conn., 378; Dwight v. Pomeroy, 17 Mass., 303; Betts v. Gunn, 31 Ala., 219; Westbrook v. Harbeson, 2 McCord’s Eq. (S. Car.), 112; Knight v. Bunn, 17 Iredell Eq. (N. Car.), 77; Boughton v. Coffer, 18 Grat. (Va.), 184; Townsend v. Stangroom, 6 Vesey, 328.
    A mistake of law is an erroneous conclusion as to the legal effect of known facts. Birkhauser v. Schmitt, 45 Wis., 316; Hurd v. Hall, 12 Wis., 138. Mowatt v. Wright, 1 Wend., 355.
    It is laid down as a rule that such mistakes, unconnected with a mistake of fact, and where there are no indications of fraud, imposition or undue advantage entering into the agreement, will not be disturbed by a court of equity. Shafer v. Davis, 13 Ill., 396 ; Sibert v. McAvoy, 15 Ill., 106; Nabours v. Cooke, 24 Miss., 44; Storrs v. Barker, 6 Johnson’s Ch., 166 ; Snell v. Ins. Co., 98 U. S., 52; Bentley v. Whitemore, 18 N. J. Eq., 366; U. S. v. Ames, 19 Otto, 35; Bank of U. S. v. Daniels, 12 Peters, 32.
    The doctrine that contracts entered into or acts done under a mistake or ignorance of the law are binding upon the parties cannot be questioned. Ottenheimer v. Cook, 10 Heisk (Tenn.), 309; Rector v. Collins, 46 Ark., 167; Lyon v. Richmond, 2 John Ct., 60 ; Crosier v. Aver, 7 Paige, 137; Thompson v. Thompson, 18 Ohio St., 73.
    A mistake on the part of persons executing an instrument as to its legal effect or that it has an effect different from that intended, cannot avail to avoid that construction of the instrument which the language used and the rules of law as applied thereto require. Shafer v. Davis, 13 Ill., 396; Wood v. Price, 46 Ill., 439; Goltra v. Sannasack, 53 Ill., 456; Paine v. Jones, 75 N. Y., 593 ; Zane v. Cawley, 21 N. J. Eq., 130; Hawralty v. Warren, 18 N. J. Eq., 124; Coley v. Coley, 19 Conn., 114; Leavitt v. Palmer, 3 N. Y., 19; Hunt v. Rousmaniere, 8 Wheaton, 174.
    Where the facts on which a contract under seal is founded are mutually understood by the parties or where they have an opportunity of knowing them, but by a mistake as to the legal effect of them when made, relief will not be extended to the party complaining. McAninch v. Laughlin, 13 Pa. St., 371; Sparks v. Pittman, 51 Miss., 511.
    The evidence to reform an instrument must be clear and satisfactory. Davenport v. Sovil, 6 Ohio St., 459.

      Influence obtained by modest pursuasion and argument addressed to the understanding or appeals to the affections, do not constitute undue influence. Barbour v. Waters, 28 S. W. Rep., 785 (Ky.); 1 Western Reserve Law Journal, 57.
    If there was a mistake made as to the legal effect of the deed made by John to the plaintiff in error, there was no mistake as to the legal effect of that instrument on the part of the grantee. All of the Ohio cases where a mistake as to the legal effect of the instrument was corrected proceeded either on the ground of fraud, or that the legal effect was the mistake of both parties. If the terms used fail to carry out the manifest intention of both parties to the instrument it can be corrected, otherwise not. McNaughton v. Partridge, 11 Ohio, 232; Evans v. Strode, 11 Ohio, 480; Ins. Co. v. Boyle, 21 Ohio St., 127; Clayton v. Freet, 10 Ohio St., 545; Horst v. Dague, 34 Ohio St., 376; Ridskoff v. Homan, 28 Ohio St., 520.
    The deed in question is a conveyance, and not a contract for a conveyance or covenant to stand seized. It is executed and not executory. It binds the estate, and not the person. It does not have the effect merely to raise an equity, but, as held in 2 Ohio St., 314, it transfers both the legal and equitable estate. Thompson v. Thompson, 17 Ohio St., 665.
    This property, no one will deny belonged to John Kihlken absolutely, if it was conveyed to him with the intent and he received it with the intent to defraud creditors. Barton v. Morris, 15 Ohio, 408 ; Sexton v. Wheaton, 8 Wheaton, 229; Thompson v. Daugherty, 12 S. & R., 448; Bump on Fraudulent Conveyances, 271.

      There is no more objection to a man giving away his property if he able to doit, than there is to his selling it. Creed v. Bank, 1 Ohio St., 1; Lathrop v. Young, 25 Ohio St., 464; Townsend Ex’rs v. Townsend et al., 25 Ohio St., 489 ; Weston v. Weston, 38 Ohio St., 478; 30th Bulletin, page 345 and page 383.

      E G. Love and Bartlett cfs Wilson, for defendants in error.
    The deed and contract referred to in the petition between Henry B. Kihlken and John Kihlken had the effect of conveying the title of these lands in trust to John for the benefit of Henry B. Mathews v. Leaman, 24 Ohio St., 615.
    The equitable title to the property therefore remained thereafter in H. B. Kihlken until his death and was subject to the same rules of descent as legal titles. Perry on Trusts, section 357, et seq.; 1st Pomeroy’s Equitable Jurisprudence, section 426; Avery v. Dumfrees, 9 Ohio, 145.
    Hence this equitable estate, being ancestral, descended to the brothers and sisters of H. B. Kihlken subject to the life estate of his wife. Section 4158, Revised Statutes.
    The defendant, Frederika E. Kihlken, therefore has simply had transferred to her the trust held by John Kihlken, and she holds this property with her life estate, but with the legal title for the benefit of plaintiff and the other defendants, heirs of H. B. Kihlken. White v. Brocaw, 14 Ohio St., 339.
    John H. attempted to reconvey this property in accordance with the wish of H. B. Kihlken and supposed that he was carrying out the intention of the parties to the contract, but through a mistake of law conveyed the legal title to the wrong person. Equity will grant relief in such a case. Bispham’s Equity, section 187.
    The allegations of the answer with reference to the so-called claim of Caroline Miller were evidently made by the plaintiff in error for the purpose of bringing this case within the rule laid down in Trimble v. Doty, 16 Ohio St., 119, and Robinson v. Robinson in 17 Ohio St., 480.
    These allegations fall short of making a case that a fraudulent conveyance has been made between the parties and the fraudulent grantor cannot recover. They do not show that any fraud was ever consummated on the Miller girl. It does not appear that she ever had or prosecuted any claim. 3 Waite Ac. & Def., 469.
    The contract and deed between John and H. B. Kihlken created an express trust in John and although, under the holdings in this state, (if as a matter of fact it was a fraudulent trust) H. B. could never have recovered the property from John, still if John was ready to execute the moral obligation imposed upon him by the trust, although he was not legally bound to do so, a court of equity will certainly aid him when he has made a disposition of the property under a mistaken idea of the law and not in accordance with a true interpretation of the terms and objects of the trust.
    No third party could take advantage of the illegality of the consideration between Henry B. and John. For a case that is analogous in principle see Norton v. Blinn, 39 Ohio St., 145.
    It must also be borne in mind that however fraudulent such a deed may be as against creditors, it is good as between the parties, and while it may be true that no remedy is afforded a fraudulent grantor or his heirs to reclaim the property thus conveyed, it is equally true that a fraudulent grantee from a sense of his moral duty, ought to give back the property to him from whom he received it, and his subsequent acts in the execution or attempted execution of the moral duty to restore the property should be favorably considered in equity and no obstacle should be opposed to his desires and efforts in that behalf, by courts exercising equitable jurisdiction. 14 Ohio St., 339; 10 Ohio, 230; 51 Ohio St., 414.
   Minshall, J.

The land in question was devised to Henry Kihlken, now deceased, by his father, and he conveyed it to his brother John in 1888, on a written agreement that it was to be reeonveyed on request. There was no real consideration for the conveyance, but was done for a purpose we will not now consider. Before his death Henry made the request, but died before a reconveyance was made. Thereupon John conveyed the land to Henry’s widow, believing at the time that, under the trust, this was in accordance with his duty. This presents the first aspect of the question arising upon the facts as found. The claim of the plaintiffs below is, that by reason of the fact that the land in question was devised to Henry by his father, and that Henry died without issue, it should descend to them as ancestral property under section 4158, Revised Statutes, notwithstanding the conveyance to John and by John to Henry’s widow. This we think is erroneous. Had John as requested conveyed to Henry just before his death, the immediate title of Henry to the land would have been the deed of John and not the devise of his father. In Brower v. Hunt, 18 Ohio St., 311, after partition had been made between brothers of land devised to them by their father, two of them, Jacob and Thomas, exchanged the lands each had received in the partition by a reciprocal execution of deeds. There was no other consideration received by either for his conveyance than the land received from the other. The court held that by this exchange the lands lost their ancestral character. The reasoning is stated as follows by White, J.: “The title mentioned in the statute is the title under which the intestate immediately holds. The title to these lands came to Thomas by deed of conveyance from Jacob, and the character of the consideration cannot alter the fact and make that a title by devise from the ancestor which was in fact a title by deed from. Jacob. ” It is true that in partition, though effected by deeds, it is held to be different; because partition acts only on the possession and not on the title. Partition does not change the character of the title. Freeman v. Allen, 17 Ohio St., 527; Carter v. Day, ante. We are unable to see why the reasoning in Brower v. Hunt does not apply with equal force to the case before us. Had the conveyance been made by John to Henry in his lifetime as requested, he would have died seized of them as non-ancestral lands under the deed; for whatever previous equity he had would have been merged in the deed; and the lands would have descended to his wife under section 4159, Revised Statutes, as an absolute estate in fee simple. It is said in Stemble v. Martin, 50 Ohio St. 495, 525: “The descent of real estate is controlled by the legal title; and when the legal and equitable title unite in the same person, the latter becomes merged in the former, and does not descend separately. The legal title draws to it the whole estate, and carries it in the same channel of descent as if the equitable estate had never existed.” So in Patterson v. Lampson, 45 Ohio St., 77, the same principle was applied. There a father desiring to make an advancement to his daughter on the eve of her marriage, purchased a tract of land, paying therefor $6,000, and caused the deed to be made directly to her. On her death without children, the land was held to be non-ancestral; because the immediate title under which she held the land was the deed of the person from, whom her father purchased it. Hence John did not mistake his duty under the trust when he conveyed the lands to Henry’s wife; for it was his duty to convey them, if there was any in the premises, to the person that would have inherited them, had the reconveyance been made to Henry.

There is no room for a question of good faith or fraud on the part of the owner of ancestral lands, in changing their character. He has, during life, the power to dispose of them as he pleases; and it is only where he does not, and dies seized of them without issue, that his brothers and sisters take any estate whatever in them. They simply take in the character of heirs and not otherwise. In Indiana it appears that the surviving wife of a deceased husband inherits one-third of his lands in fee simple, subject to the provision, that if she again intermarries, she cannot, during such marriage, alienate them; and if she dies during such subsequent marriage, the lands go to the children of the husband from whom the lands came. And in Nesbitt v. Trindle, 64 Ind., 183, it was held that a widow could change the heritable character of the lands descended to her from her deceased husband, by a deed made without consideration to a third person, who after she had remarried, reconveyed to her. She, as the court observed, had the power, before her remarriage, to dispose of the lands as she pleased; and whether she did so for a consideration or not, was immaterial to the rights of her children by the former husband from whom she derived title; for they, as heirs, liad no vested estate in the lands, while she remained a widow.

The second aspect of the question on the plaintiff’s right to recover, arises upon the fact averred in the answer of the defendant, and found by the court to be true, that the deed made by Henry to his brother John in 1888, was made for the fraudulent purpose of hindering and delaying one Catherine Miller in the collection of any judgment she mig'ht recover against him in a contemplated bastardy proceeding; and was accepted by John to assist him in this purpose. This we think is an additional reason why the plaintiffs below are not entitled to recover. It is too well settled in this state to need the citation of many authorities, that neither a grantor nor his heirs, can have any relief in law or equity for the recovery of lands so conveyed. Trimble v. Doty, 16 Ohio St., 119; Robinson v. Robinson, 17 id., 480; Vanzant v. Davis, 6 Ohio St., 52; Barton v. Morris, 15 Ohio, 408, 431; Tempner v. Barton, 18 id., 418, 422. But it is claimed that these cases do not apply here, because it is not shown or found by the court, that the Miller girl had any valid claim against him, or had in fact commenced any proceeding in bastardy. Conceding- that this is a correct construction of the finding, which is doubtful, as the finding is that the conveyance was made to defraud her out of “her just claim,” still it does not help the plaintiffs below. This very question here raised was., disposed of in Fridge v. Andrews, 51 Ohio St., 405. It was there held that “where an owner, during the pendency of a suit against him, and in view of a possible judgment being rendered adversely to him, conveys his property to another with intent to defeat the satisfaction of such judgment as may be recovered against him in the suit, he cannot, after judgment in such suit in his favor, have the aid of a court of equity to compel the grantee to reconvey to him the property. ’ ’ The fact that no suit is pending at the time of the conveyance cannot vary the application of the principle, where it was made to defeat the satisfaction of any claim that might be established against him. The fact of the conveyance having been made, may have dissuaded the girl from commencing any suit, just as was said in Pride v. Andrews, it may have caused the party to abandon his suit, rather than enter upon the task of pursuing the property.

The case of Norton v. Blinn, 39 Ohio St., 145, much relied on, is not in point. There Norton as agent received from Blinn $500 to be invested in margins on wheat. He invested the money and made $395 and refused to account for the principal and what was made, on the ground that the transaction was an illegal one. The agent was required to account, on the ground that “it is contrary to public policy and good morals, to permit employees, agents or servants to seize or retain the property of their principal, although it may be employed in illegal business and under their control.” In the case before us the defendant below was not acting in the capacity of agent for any one. The conveyance was made to and accepted by her, in her own capacity and rig'ht; and not as a trustee, or agent to transmit the title to some one else. If the application here claimed for Norton v. Blinn were admitted, it would result in overruling all the decisions heretofore made, denying any relief to one, making a conveyance to hinder and delay his creditors.

The defendant below, by leave of the court, amended her answer, adding a prayer that her title to the property be quieted. We think she is entitled to the relief asked. Therefore,

Judgment reversed; and judgment for the widow quieting her title.