author:
Granger, C. J.
      Martin, J.

text:
    Skerrett v. Presbyterian Society.
    1. In an action brought under sections 6442, 6443 and 6444, revised statutes, an issue joined between parties, neither of whom was in possession of the land, is triable by the court without a jury, notwithstanding either of them might have maintained a legal action for possession against the actual holder, in case the land had not been appropriated. And either party to such issue may appeal from an adverse final judgment of the common pleas.
    2. M. was employed by W. to make an entry and survey in the Virginia Military Land District in Ohio, under a legal warrant. M. duly completed an entry so as to appropriate a specified tract of 1000 acres. Without W’s consent, M. made a survey of 530 acres upon land not covered by the entry. This W. repudiated when informed of it. M. made entries, under warrants belonging to himself, including W’s land; surveyed them and recorded his survey; laid out a town and, for value received, made and delivered a deed to G-. for lot 86 in said town. Soon afterwards W. sued M. to compel a conveyance to him of said 1000 acres and obtained a decree under which the tract was duly surveyed. Pending suit M. died and a patent on his entries was issued to his heirs. Held: Although Gr. bought without actual notice of W.’s right, the equity of the latter was the elder and superior, and the grantees in the patent held the legal title in trust for him.
    3. W. owned lots 81 and 86 in Chillicotbe. On November 4, A. d. 1823, he duly made and delivered a deed conveying lot 81, in fee simple absolute, to an incorporated religious society. It stated and acknowledged the receipt of a 'consideration of one dollar, which equalled the then value of lot 86. No other consideration was specified. The deed was accepted by the grantee and promptly recorded. The grantee had for years held and used lot 86 as a graveyard and it contained many graves. The grantor intended to convey lot 86. In ignorance of the mistake, the grantee made no attempt to possess lot 81 but continued to hold lot 86, claiming title under said deed as W. knew. He contracted to sell lot 81 for $330 to S., and in 1832 W’s executor (who was also the sole devisee of his Ohio lands,) conveyed it to S. Erom that time S. and his assigns held lot SI, claiming title. In A. D. 1878 a railway company duly appropriated lot 86, and $7,500, its assessed value, was placed in Ross county probate court, pending legal determination of the ownership of the fund. This was claimed by the society, and by W’s representatives. The trial court adjudged that the former was the equitable owner of the whole.

      Held; 1. This.was right. The estate of W., after appropriating to its own use the lot actually conveyed to the society, should not be allowed to oust the latter from the one intended to be conveyed, and which had remained in its possession for more than fifty years.
    2. Although one dollar is usually a nominal consideration, when it equals tlie value of the premises, and there is no evidence that it was not actually paid, while the deed acknowledges its receipt, the grantee is a purchaser for value.
    Ekbok to the District Court of Ross County.
    In A. D. 1877, the First Presbyterian Society of Chillicothe was in possession of lot 86 in that city. It contained four acres, and was full of graves. The Scioto Valley Railway Company began a proceeding in Ross probate court to appropriate the lot. This was duly completed, and the assessed value of the land, $7,500, was placed in the court, pending legal determination of the ownership of the fund. This was claimed by the heirs of Robert Gregg; by the heir of Nathan Gregg; by the representatives of John Watts; and by said society. As no question is before this court touching the claim of the heir of Nathan Gregg, no further reference will be made to it. The heirs of Robert Gregg filed a petition, as in a civil action, in Ross common pleas, making the other claimants defendants. Answers, in the nature of cross-petitions, were filed by the respective counter-claimants. The common pleas found that the heirs of neither Gregg had any valid claim, legal or equitable; that the legal title was in the representatives of Watts, but that the society’s prayer for the correction of a deed made to it by Watts ought to be granted and the fund paid to it. A decree was so made. From it the other claimants severally appealed. The district court overruled motions to dismiss the appeal of the Robert Gregg heirs, and found and decreed that, in equity, the fund belonged to the society. The heirs of Robert Gregg and the Watts representatives severally excepted, took bills of exception, and are before this court with petition and cross-petition in error. The questions made can best be stated in connection with a succinct narrative of the facts.
    In 1787, Ferdinand O’Neal owned a legal warrant, No. 1387, for 4000 acres of land in the Virginia Military Land District. On August 3d, in that year, Nathaniel Massie, a land surveyor employed for the purpose by O’Neal, duly made entry No. 509 of 1000 acres. Its south-east corner was upon the west bank of the Scioto river, at the north-east corner of entry No. 503 for Thomas Powell. This Powell entry had for its south-east corner the north-east corner of entry No. 480 for Thomas Massie. The south-east corner of No. 480 was at the mouth of Paint creek. Each entry extended from its south-east corner, up river, to a point on the west bank 520 poles, in a straight line, from its beginning corner. In 1796, N. Massie, of his own motion, made a survey of 530 acres, nominally as part of the O’Neil entry, but actually all of it was north of the most northern limit of that entry. He then made entry No. 2462 for himself- and, having bought the Powell entry, so surveyed 503 and 2462 as to include within them the whole of No. 509. He then laid out the town of Chillicothe upon this land, and, in 1799, for value, made and delivered to Robert Gregg a deed purporting to convey to him, his heirs and assigns, lot 86 in said town. • This lot was within entry 509. Robert Gregg permitted some burials upon the lot, and died testate in 1806. Burials continued to be made on the lot, and in 1810 Nathan Gregg, who was Robert’s executor, by a deed purporting to be made by him as owner in his own right, granted said lot to “Rev. Robert G. Wilson (and others named), trustees of the First Presbyterian Congregation of Chillicothe, * * ' * for the sole and exclusive benefit and behoof of said congregation as a burying place.” The church took and retained possession and control of the lot, using it as a graveyard. On December 31st, 1814, a patent for 2462 was issued to the heirs of Nathaniel Massie, and on November 4th, 1818, apatentfor 503 was issued to the heirs of Powell. As before stated, Massie had bought Powell’s rights.
    O’Neal had duly assigned his rights, for value, to John Watts, who lived in Bedford county, Virginia, and he paid N. Massie for his services. As soon as Watts learned how the survey of the 530 acres had been made he repudiated it, and, in 1802, began suit in the U. S. Circuit Court for Kentucky (Massie then lived in that state), against Massie and others interested with or under him, charging fraud, setting out the facts, and praying that Massie should be declared a trustee for him and ordered to convey to him the 1000 acre tract. Watts obtained a decree, which was affirmed by the supreme court of the United States. Massie having moved to Ohio, Watts began another action in the circuit court for that district, and was again successful against Massie’s heirs and a number of his grantees. His 1000 acres was duly surveyed under an order of court. The first final decree was made at May term, 1808. The decree in the circuit court for the Ohio district against Massie’s heirs was made in 1818. The decree of 1808 was affirmed in 1810; and that of 1818 in 1821. Massie having died in 1813, the action was revived-against his heirs. None of the Greggs or their heirs were made parties. The church was also omitted. It was made a corporation by special act of the legislature, under the name of “ The First Presbyterian Society of Chillicothe,” in 1810.
    On the 4th day of November, 1823, Watts made and delivered to this corporation a deed reading thus:
    “ This Indenture, made the fourth day of November in the year of our Lord one thousand eight hundred and twenty-three, between John Watts of the county of Bedford, in the state of Virginia, of the first part, and the trustees and their successors in office of the First Presbyterian Society in Chillicothe, as incorporated by the act of the General Assembly of Ohio, passed on the nineteenth day of February, in the year one thousand eight hundred and ten, entitled an act to incorporate the First Presbyterian Society, in the town of Chillicothe, of the second part.
    “ Witnesseth, that the said party of the first part, for and in consideration of the sum of one dollar, current money of the United States, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained, sold, remised and quit-claimed, and by those presents, doth bargain, sell, remise and quit-claim unto the said party of the second part, and to their successors in office forever, all that tract, piece and parcel of land situate, lying and being in the town of Chillicothe, and known and designated, on the recorded plat and plan of said town of Chillicothe, by (sic) the ont-lot numbered (81) eighty-one, together with all and singular the herdetaments (sic) and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, claim or demand whatsoever of him, the said party of the first part, either in law or equity, of, in and to the above bargained premises, and every part and parcel thereof, to the said party of the second part, and their successors in office, to the sole and only proper use, benefit and behoof of the said party of the second part, and their successors in office forever.
    “ In witness whereof, the said party of the first part hath hereunto set his hand and seal the day and year above written.
    “ John Watts, [seal.]
    “ Signed, sealed and delivered in the presence of us,
    “Mathew Bonneb.
    “Cadwalladeb Wallace.”
    This was duly acknowledged and certified, and, on the 26th day of the same month, was duly recorded. The church made no attempt to possess itself of lot 81. It adjoined 86. The latter lot was then so full of graves that the cost of removing the bodies interred would then have exceeded the value of the lot as it would have been if it had contained no graves. The church continued to hold and use 86 as its graveyard, granting burial permits, maintaining fences and walks, including a sidewalk along the lot in the street or roadway. It sometimes collected donations towards the expenses incurred in thus caring for the lot, and some of its officers at times asked the town to contribute. Of the burial fees, fifty cents belonged to the church; the remainder went to the sexton. In 1873 further burials were prohibited, but the church’s possession continued without interruption until the appropriation by the railway company.
    John Watts made a contract to sell lot 81 for $330 to Joseph Shepherd, and afterwards, in July, 1830, died testate. Arthur Watts, his son, was his executor and the sole devisee of his Ohio lands. On May 16th, 1832, he made and delivered a deed reading thus:
    “Whereas, John Watts, late of Bedford county, in the state of Virginia, deceased, by his last will and testament, now of record in the county Ross, and state of Ohio, appointed Arthur Watts an executor of said will with full power to make all conveyances of either real or personal property which, by any contract, the .said John Watts was bound to make.
    “And, whereas, the said John Watts had contracted in his lifetime for the sale and conveyance of the tract of land hereinafter mentioned:
    “Now, therefore, know all men by these presents, that I, Arthur Watts, of Ross county, in the state of Ohio, executor of the last will and testament of the said John Watts, as aforesaid, in virtue of the premises aforesaid, and in consideration of the sum of three hundred and thirty dollars, which is acknowledged to have been received for said land, have granted, sold and conveyed and by these presents do grant, sell and convey unto Joseph Shepherd of Ross county, in the state of Ohio, all that tract or parcel of land, situate, lying and being in the county and state last aforesaid, and bounded and described as follows, to-wit:
    “ Out lot No. eighty-one (81), and the east half of out lot No. seventy-two (72), within the town of Chillicothe, which will more fully appear by reference to the recorded plan of said town in the recorder’s office in Ross county, together with all improvements, profits and appurtenances to the said land in any wise belonging, and also all the estate and title, which he, the said John Watts, had in said land at the time of his death.
    “ To have and to hold the said land with every of the improvements and appurtenances to the said Joseph Shepherd, his heirs and assigns forever, in as full, perfect, complete and ample a manner as I, the said Arthur Watts, as executor, as aforesaid, might, could or ought to convey the same.
    “ The said Arthur Watts, as executor of said -John Watts, but in no other right or capacity, hereby covenants that in case the said land above described and conveyed, shall at any time hereafter, be recovered by title, paramount against the said John Watts, his heirs or assigns, that the estate or heirs or devisors, receiving the estate of the said John Watts, shall be liable to refund the purchase money above acknowledged as received as on covenant of general warranty made by said John Watts.
    “In witness whereof, the said Arthur Watts, as executor of said John Watts, hereto sets his hand and seal this sixteenth day of May, in the year one thousand eight hundred and thirty-two.
    “ Arthur. Watts, [seal.]
    “ Signed, sealed and delivered in the presence of
    “ James Miller.
    “ John McLean.”
    This was duly acknowledged, certified and recorded, and Shepherd and his assigns have ever since possessed lot 81, claiming title. The parties hereinbefore referred to as the representatives of John Watts, claim as heirs and devisees of said Arthur Watts. No claim to 86 was ever made 'by any of them until about 1877. Neither John, nor Arthur, ever made any claim to any ownership of, or interest in, said lot after the date of the deed of November 4th, 1823. John Watts intended, by that deed, to convey lot 86 to the church. Eighty-one was inserted in place of 86 by mistake

      L. French and A. B. Cole, for plaintiff in error:
    From the facts admitted by the defendant, two propositions follow, viz.:
    1st. That defendant claims and holds, from and under the same source of title as plaintiffs — ancestors.
    2d. That defendant is therefore stopped from denying or impeaching plaintiff’s title, either by allegations in pleadings or by testimony offered on the trial.
    The first is a conclusion of 'fact, the second is a conclusion of law. The first follows from the statements and admissions in the pleadings, and is corroborated by the evidence in the case. The second is established by many authorities. See Moore v. Beasley, 3 Ohio, 294; Presbyterian Church v. Pickett, Wright Rep., 57; Longworth v. Wolfinger, Id., 216; Ger. B. Association v. Rosimbaum, 1 Cin. S. C. R., 69; Douglas v. Scott, 6 Ohio St., 197; Jackson v. Hindman, 10 Johnson R., 292; Fitch v. Baldwin, 17 Id., 165; McWilliams v. Nisely, 2 Serg. & Rawle, 339; Lane v. Reynolds, 2 Id., 64; 4 Kent, 98; Scott v. Douglass, 7 Ohio Rep., 227. Parties and their privies are bound. 11 Id., 275.
    Estoppel runs with the land. Carver v. Jackson, 4 Peters U. S., 85; 5 Ohio St., 198; Buffalo v. Newsom, 17 Am. Dec., 565.
    The following is plaintiff’s claim of title:
    1. Lot 86 lies in original survey No. 2462, entered and surveyed in the name of Nathaniel Massie, in 1795-1796, and duly recorded in the proper books of records.
    2. Massie laid out and surveyed the town of Chillicothe into in and out lots upon road survey, lot 86 being one of said lots, containing about four acres.
    3. In 1799 Massie conveyed said lot by warranty deed to Robert Gregg.
    4. Robert Gregg held and used said lot for a burying ground from 1799 to his death in 1806. He left a will by which he disposed of all his property, and appointed his brother, Nathan, his sole executor.
    5. By the fifth clause of said will, lot 86 was conveyed to and passed in to the ancestors of plaintiffs.
    6. Nathan Gregg, being executor, in 1810 conveyed the use of said lot to the trustees of the defendant (church), in trust, for the sole use of said society as a burying ground.
    7. In 1814 survey No. 2462 was by patent conveyed to the children and only heirs of Nathaniel Massie, who died in 1811 intestate. This was the only patent ever issued for said survey. The conveyance by the United States to Massie’s heirs perfected the title in them, and in Massie’s grantees, of all lands in said survey. Scott v. Swarengin, 1 Ohio St., 395; Stoddard v. Chambers, 2 Howard U. S., 284; Lane v. Reynolds, 2 Serg. & Rawle, 64.
    It is claimed that lot 86 was located in survey No. 503, which was Powell’s survey. But Powell assigned and sold No. 503 to Massie in 1796, and the survey was patented to Powell’s heirs in 1818.
    The plaintiffs claim is:
    I. That the pleadings and evidence establish the title of lot No. 86 in the plaintiffs as heirs of the residuary legatees of Robert Gregg, deceased, subject to the servitude and trusts imposed by the acts and deed of the testator and his executor, viz., its use as a burying ground.
    II. Since such incumbrance and trust ceased with the termination of its use as a burying ground, and such use has now become impossible, the right of plaintiffs to immemediate possession is complete.
    The conduct of the defendant (the church) shows clearly that until about 1869, and subsequently, the church never claimed any other than a trust estate in said lot. They never claimed any exclusive or adverse possession against their cestui que trusts, reversionary or otherwise; much less did they give notice of an adverse holding.
    If we are correct in our claim, the statute of limitations did not run in favor of the church and against plaintiff’s ancestors. Rev. Stats., § 4973.
    The church is estopped to deny or impeach the title of plaintiffs by trying to sever the chain back of their grantor, Nathan Gregg. Fowler v. Cramer, 20 Am. Dec., 153; Longworth v. Hunt, 11 Ohio St., 201.

      Lawrence T. Neal (with whom were Vanmeter & Throckmorton), for the church:
    I. The deed of Nathan'Gregg conveyed to Robert G. Wilson and his associates, as trustees for the First Presbyterian Society in Chillieothe, the legal title to the lot in controversy, in fee simple. Williams v. Presbyterian Society, 1 Ohio St., 478, and cases cited; Stearns v. Palmer, 10 Metc. (Mass.), 32.
    The words “ for the sole and exclusive benefit of said congregation as a burying place ” did not create a condition upon the breach of which the estate reverted to the grantor or liis heirs. 4 Cruise’s Digest, 375, 376; 2 Washburn on Real Property, 3; 1 Bouvier’s Law Dictionary, 314, title, Condition, § 8; Rawson v. Uxbridge, 7 Allen, 128, and cases cited; 4 Kent Com., 11th edit., 142; 2 Washburn on Real Property, 3d edit., 4-6; 2 Wait’s Actions and Defenses, 505, 506; Rawson v. Uxbridge, 7 Allen, 125—128; Ayer v. Emery, 14 Allen, 67-70; Ward v. New England Screw Company, 1 Clifford, 565, 566; Sherwood v. Waller, 20 Conn., 262; Sharon Iron Company v. Erie, 41 Penn. St., 341; Beach v. Haynes, 12 Vt., 15; State v. Woodward, 23 Vt., 93; Baldwin v. Atwood, 23 Conn., 367; Stearns v. Palmer et al., 10 Metc. (Mass.), 32.
    II. A deed, creating an estate upon a condition, conveys the legal title as fully as a deed without a condition. There is no difference between an estate absolute and indefeasible and an estate upon a condition subsequent, so long as there is no breach of the condition. 4 Kent Com., 133-138; 1 Hilliard on Real Property, 563; 2 Washburn on Real Property, 2-19.
    And even when the condition is broken, it does not necessarily defeat the estate to which it is annexed. Coke on Littleton, 2186, note 133; 2 Cruise Dig., 37, 38; Shep. Touch., 154; 1 Lom. Dig., 280; 2 Washburn on Real Property, 10—13; 1 Hilliard on Real Property, 384; 4 Kent Com., 139-141; Walk. Am. Law, 332; 1 Bouvier’s Law Dictionary, 315; 1 Smith’s Leading Cases, 115; 3 Wait’s Actions and Defenses, 70; Marwick v. Andrews, 25 Me., 525; Bangor v. Warren, 34 Me., 324; Tallman v. Snow, 35 Me., 342; Nicoll v. N. Y. & E. R. R. Co., 12 N. Y., 121; Fond v. Sage, 46 Barb., 109; Guild v. Richards, 16 Gray, 309; Hubbard v. Hubbard, 97 Mass., 188; Chalker v. Chalker, 1 Conn., 86; Bowen v. Bowen, 18 Conn., 540; Sperry v. Pond et al., 5 Ohio St., 387.
    The principle established by these authorities, when applied to this case, would have given the right to re-enter to the defendant, Nathan P. Gregg, and not to the plaintiffs in error.
    The rule is that this re-entry cannot be made by anyone except the grantor or his heirs. 2 Washburn on Real Property, 11-15; 4 Kent Com., 139; Walk. Am. Law, 332; 3 Wait’s Actions and Defenses, 70; 1 Smith’s Leading Cases, 120; Stearns v. Harris, 8 Allen, 597; Rice v. Boston & Worcester R. R. Co., 12 Allen, 141; Guild v. Richards, 16 Gray, 309; Hooper v. Cummings, 45 Me., 359; Cook v. St. Paul's Church, 5 Hun, 293; Tinkham v. Erie R. R. Co., 53 Barb., 393; Welch v. Silliman, 2 Hill (N. Y.), 491.
    No re-entry was made, and if there be no re-entry, if the party who has a right to enforce a forfeiture for the breach of the condition, neglects or refuses to do so, his ought is waived. Sharon Iron Co. v. Erie, 41 Penn. St., 341; 3 Wait’s Actions and Defenses, 74; 2 Washburn on Real Property, 15, 16; Guild v. Richards, 16 Gray, 309; Coon v. Buckett, 2 N. H., 163; Hubbard v. Hubbard, 97 Mass., 192; 2 Bouvier’s Law Dictionary, Title — Waiver, 648 ; Lang v. Holbrook, Crabb’s Rep., 179. The abandonment of the lot in obedience to the condemnation proceedings was attributable to the act of the law, and it is well settled that the performance of a conditioh subsequent is excused when such performance is prevented, or becomes impossible by the act of the law, and that in such case the estate becomes absolute. 4 Kent’s Commentaries, 142; 2 Washburn on Real Property, 15; 2 Wait’s Action and Defenses, 406, 74, 435; Taylor’s Landlord and Tenant, see. 281; Brewster v. Kitchell, 1 Salkeld, 198; Anglesea v. Rugeley, 51 Eng. Com. Law; Presbyterian Church v. City of New York, 5 Cowen, 538; People v. Manning, 8 Cowen, 297; Carpenter v. Stephens, 12 Wendell, 589; People v. Bartlett, 3 Hill, 570; Harrington v. Dennie, 13 Mass., 94; Badlam v. Tucker, 1 Pick., 389 ; Fuller v. Brown, 11 Metc., 440; Holland v. Bouldin, 4 Monroe, 149; Kelley v. Henderson, 1 Penn. St., 495.
    III. There can be no question about the right of the First Presbyterian Society in Chillicothe to assert any title it may have acquired from John Watts against the plaintiffs in error, or any of the Gregg heirs. That the deed from Nathan Gregg will not prevent it from asserting a paramount title obtained from John Watts is well established by the authorities. Bigelow on Estoppel, 251; 6 Wait’s Actions and. Defenses, 449; Coakley v. Perry, 3 Ohio St., 344; Society, &c. v. Pawlet, 4 Pet., 480; Blight v. Rochester, 7 Wheat., 548; Watkins v. Holman, 16 Pet., 25, 54; Voorhies v. White, 2 Marsh, 27; Winlock v. Hardy, 4 Litt., 274; Owens v. Robbins, 19 Ill., 545; Osterhout v. Shoemaker, 3 Hill, 513; Averill v. Wilson, 4 Barb., 180.
    IV. As to the claims of Piatt and Watts:
    1. The' defendants, Eleanor W. Piatt, A. Saunders Piatt and Thomas A. Watts, consented that all of the evidence offered by the plaintiffs in error, and the First Presbyterian Society in Chillieothe, for the purpose of a re-trial, in the district court, of the legal issues determined by the court of common pleas, to the introduction of which they objected, should be received and read subject to their exception, and did not afterwards make a motion to rule out or exclude the same, or any part thereof. The judgment of the district court cannot, therefore, be reversed on the ground that it improperly admitted this evidence. Thayer v. Luce et al., 22 Ohio St., 63.
    2. The evidence in the case shows clearly and conclusively that John Watts, by his deed of November 4,1823, intended to convey out-lot No. 86 to the First Presbyterian Society in Chillieothe, and that he, by mistake, conveyed to it out-lot No. 81. Equity will, therefore, hold that the society is entitled to the lot intended to be conveyed, as against the heirs of John Watts, and the courts will, if necessary to protect the interests of the society, correct the errors in this deed. Broadwell v. Phillips, 30 Ohio St., 255, 264; Strang v. Beach et al., 11 Id., 283; Davenport v. Sovil, 6 Id., 459, 463 ; McLouth v. Rathbone et al., 19 Ohio, 21, 25; Young v. Miller, 10 Id., 90; Hunt v. Freeman, 1 Id., 490; Gouverneur v. Titus, 6 Paige, 347; Gillespie v. Moon, 2 Johns. Ch., 585; Lindsey v. Davenport, 18 Ill., 375; Mills v. Lockwood, 42 Id., 111; Deford v. Mercer, 24 Iowa, 118; Hutson v. Fumas, 31 Id., 154; DePuyster v. Hasbrook, 11 N. Y., 591; Burr v. Hutchinson, 61 Me., 514; 5 Wait’s Actions and Defenses, 439, 442, 443; 2 Leading Cases in Equity, 680, 702; 1 Story’s Eq. Juris., sec. 153, et. seq.
    The fact that the deed from John Watts to the society was a quit-claim and contained no covenants of warranty is immaterial. Lindsey v. Davenport, 18 Ill., 375 ; Deford v. Mercer, 24 Iowa, 118.
    The equity rule that a deed will not be reformed at the instance of a mere volunteer, is not applicable to this case. The First Presbyterian Society in Chillicothe is not a volunteer. The consideration expressed in the deed is small, it is true, but it is, nevertheless, a valuable and not a nominal consideration, and represents the full value of the property described therein. The evidence fully establishes this fact. This lot was, in 1823, full of graves, in such a condition that it could not be used for any other purpose without the removal of the bodies buried there, and the cost of their removal would have been greater than the value of the lot after they were removed.
    Besides, the deed was under seal, and this of itself imports a valuable consideration. Wilson et al. v. Fleming, 13 Ohio St., 74; Livingston v. Tremper, 4 Johns, 416. The actual payment of the consideration expressed in the deed was not necessary to its validity, and if it were, the court would not permit the heirs of John Watts to prove its nonpayment for the purpose of destroying it. Merriam v. Hansen, 2 Barb. Ch., 232; Bank of U. S. v. Houseman, 6 Paige Ch., 526. The want of consideration in the deed of their ancestors could not be set up by them. Jackson v. King, 4 Cowen, 207. But they have offered no evidence to prove its non-payment. They have not complained that it was not paid. Williams v. The First Presbyterian Society in Cincinnati, 1 Ohio St., 504, 505.
    The courts will not refuse any relief that may be necessary to protect the interests of a party in a case like this, upon the ground of the inadequacy of consideration. Adams’ Equity, 193, side page 79; Waterman on Specific Perform., §§ 179, 182; 2 Leading Cases in Equity, 696, and cases cited.

      But if the deed from John Watts to the First Presbyterian Society in Chillicothe was made without consideration, and was a purely voluntary conveyance, equity will .enforce it by a correction of the mistake, the society having made valuable improvements on the lot intended to be conveyed. 1 Leading Cases in Equity, 332: Syler v. Echert, 1 Binney, 308 ; Young v. Glendenning, 6 Watts, 309.
    Again, if the deed from John Watts to the First Presbyterian Society in Chillicothe was voluntary, it was a gift for a charitable purpose, and equity will upon this ground correct the mistake in the description of the lot.
    Such gifts are supported by what is recognized in modern equity as a meritorious consideration. Adams’ Equity, 230-231, side pages 97, 98; 2 Pomeroy’s Equity Jurisprudence, § 588; Thompson v. Thompson, 17 Ohio St., 659; Innes v. Sayre, 3 Macn. & Gord., 606; 23 American Decisions, 425, note; Bispham’s Equity, § 194; 2 Story’s Equity Jurisprudence, § 1171; 2 Perry on Trusts, §§ 687-701; 2 Wait’s Actions and Defenses, 142-144; Adams’ Equity, 172, 173, side pages 66, 67; 1 Bouvier’s Law Dictionary, 258; Trustees, &c., v. Zanesville C. & M. Co., 9 Ohio St., 287; Miller v. Teacher, 24 Ohio St., 525-532; American Tract Society v. Atwater, 30 Ohio St., 77.
    The right of the First Presbyterian Society in Chillicothe to relief, if any be needed, by reforming the deed as to the description, it having remained in possession of the lot, is not barred by lapse of time. Paschall v. Hinderer, 28 Ohio St., 568; Broadwell v. Phillips, 30 Id., 255; Barbour v. Whitlock, 4 Monroe, 180; Cannedy v. Marcy, 13 Gray, 373; Lindsey v. Davenport, 18 Ill., 375; Mills v. Lockwood, 42 Id., 111; Hutson v. Fumas, 31 Iowa, 154.
    III. Whatever claim the defendants, the Piatts and Watts, may have had to this lot, is barred by the statute of limitations. Paine's Lessee v. Skinner, 8 Ohio St., 159, 167; Yetzer v. Thoman, 17 Id., 130; McNealy v. Langam, 22 Id., 32, 37; 3 Washburn on Real Property, 145; 2 Smith’s Leading Cases, 637-643; 6 Wait’s Actions and Defenses, 436.

      If we ignore entirely the Nathan Gregg deed, the execution and delivery of the deed by John Watts to the society would naturally lead to the belief that he had conveyed to it whatever title he may have had to the lot, and one who believes that he has been invested by the former owner withi a good title, must necessarily afterwards occupy adversely to his supposed grantor. Motte v. Alger, 15 Gray, 327.

      Harrison, Olds & Marsh, for Piatt and Watts.

    The court of common pleas settled and determined all the legal issues against the Gregg heirs except the issue upon the right of the church by adverse possession. It settled and determined all the legal issues in favor of the Watts heirs. It determined the equitable issues in favor of the church and against the Watts heirs, and that the church had an equitable right to the fund. Thereupon the Watts heirs appealed to the district court. ■
    This appeal, we contend, carried up only the equitable branch of the case. It did not re-open the legal issues settled in the common pleas. Whether of not that court erred in its conclusions of facts or in its conclusions of law upon the facts found so far as related to the legal issues they could only be reviewed upon error to that court. Such error has not been prosecuted.
    Of course, all questions of law or fact as to an agreement with John Watts, a mistake in the deed, possession or improvements by the church, and lapse of time and laches so far as they related to the equitable issues were re-opened for re-trial irrespective of the findings in the common pleas. Cox v. Cox, 19 Ohio St., 502; Rev. Stat., sec. 5226; Massie v. Stratford, 17 Ohio St., 596; Buckner v. Mear, 26 Id., 514; Maginnis v. Schwab, 24 Id., 336.
    If we are not right in this, then it becomes necessary to discuss the legal issues.
    This involves the construction and location of the Powell entry No. 503, and of the O’Neal entry No. 509, and the title of John Watts to the O’Neal entry. The questions arising have been decided by the supreme court of the United. States in the two cases of Massie v. Watts, 6 Cranch, 148 ; Kerr v. Watts, 6 Wheaton, 550.
    As to the title of the Watts heirs:
    I. Their claim of title as established by the evidence is as follows:
    1. Said entry No. 509, of Ferdinand O’Neal, made August 3,1787. This location depends upon said Powell entry No. 503 and Thomas Massie entry No. 480. Construed in accordance with the principles for running the lines called for in these several entries as established in said cases of Massie v. Watts, 6 Cranch, 148, and Kerr v. Watts, 6 Wheaton, 550, with the aid of the testimony of Mr. Kendrick or Mr Wesson, and the plats offered in evidence, this entry No. 509 is proven to cover said out-lot 86. Said out-lot is at least one quarter of a mile from the nearest boundary of the entry.
    By entry No. 509 the land embraced in lot 86 was appropriated and an equitable estate of inheritance was vested in the persons in whose names the entry was made: Latham, Lessee, v. Oppy, 18 Ohio, 104; Stubblefield v. Boggs, 2 Ohio St., 216 ; Horfnagh v. Anderson, 7 Wheaton, 212, 217; Stubblefield et al. v. Baggs, 2 Ohio St., 216.
    2. The assignment and conveyance of Ferd. O’Neal to John B. Scott, dated June 15, 1790, and through Scott to John Watts.
    8. The survey of entry No. 509 made July 21, 1825, “Agreeable to a decree of the supreme court of the United States,” and entered of record in the office of the principal surveyor. August 13, 1825.
    4. The patent issued to John Watts for the land covéred by said entry and survey. March 1,1826.
    5. The will of John Watts. The lands in the O’Neal entry were known as John Watts Chillicothe lands, and after the death of John Watts, his devisee, Arthur Watts, took and held possession of all these lands, except lot 86 and parts conveyed by his father, and lived and died on them.
    If John Watts owned the land at his death, and he by his will devised it to Arthur Watts, the other allegations of our cross petition as to deaths, devises, and descents are admitted to be true except so far as lapse of time and adverse possession may affect them.
    The survey made by Massie April 26, 1796, of 530 acres, was void. It was not made on the land appropriated by the entry. It was made on land already appropriated by the Stull entry. Massie could not have had any authority to make such a survey. It does not appear that O’Neal or his assignees ever recognized or adopted this survey. It is proven that the survey was abandoned: Kerr v. Watts, 6 Wheaton, 550-563.
    II. As to the history and use of the lot 86 prior to the Gregg deed of March 18, 1810 :
    There is no evidence that Nathaniel Massie or Robert Gregg or Nathan Gregg ever had any possession of out-lot 86. They claimed title, but had no valid title, legal or equitable. Massie made and recorded a plat of lots and out-lots of the town of Chillicothe, and the lines embraced this out-lot, and he executed a deed therefor to Robert Gregg. But these acts done, on and by papers, and off the premises, in no way constitute possession. They purport to be transfers of right and title, not of possession.
    It was proven that the lot was used and occupied as a public burying ground from 1799 to 1878.
    As Watts had no right to the possession and enjoyment of the lot until the termination of its use as a burial ground, he could not, before then, maintain any action to recover possession. Upon the termination of such use, his right of action for possession would first accrue.
    During the continuance of the use of the lot as a burial ground, there could be no occupation or possession of the lot adverse to Watts, who had parted with or lost his right of possession for that time.
    The rights of Watts and of the public were precisely the same as if Watts had, by deed, granted or dedicated the lot for a burial ground so long as it should be used for that purpose. Indeed, such grant maybe presumed. The possessory right of Watts was then limited to the reversion, after the termination of the intermediate possession for the enjoyment of the easement so granted.
    When a piece of ground is devoted to use as a graveyard, and especially as a public burial place, it becomes hallowed and sacred, and while the use continues, it in a certain sense belongs to nobody, and is not subject to the rules of ordinary property: Washburn on Easements, (*136); First Evangelical Church v. Walsh, 57 Ill., 363, 365; Brown v. Lutheran Church, 23 Penn. St., 495, 500; Louisville v. Nevin, 10 Bush, 549. Lands may be dedicated for the purposes of a burial ground: Hunter v. Trustees of Sandy Hill, 6 Hill, 407, 411; Commonwealth v. Viall, 2 Allen, 512, 514; Beatty v. Kurtz, 2 Peters, 566, 582; Boyce v. Kalbaugh, 47 Maryland, 334; Edwards v. Stonington Cem. Ass., 20 Conn., 477; First Evangelical Church v. Walsh, 57 Ill., 363, 365; Tyler’s Amer. Ecclesiastical Law, § 977. To constitute a dedication requires no grant or conveyance by deed or writing. Even in case of a grant or written dedication, no grantee is necessary, nor is it necessary that any grantee should be in existence : Hunter v. Trustees of Sandy Hill, 6 Hill, 407, 411; Cincinnati v. White's Lessee, 6 Peters, 431, 436, 437 ; Washburn on Easements, (*139). Express assent of the owner is not necessary to such dedication. It is sufficient, if dissent is not shown: Hunter v. Trustees of Sandy Hill, 6 Hill, 407, 413; C. & I. R. R. Co. v. Zinn, 18 Ohio St., 417; Moreland v. Richardson, 24 Beavan, 33; Cincinnati v. White's Lessee, 6 Peters, 431, 440; Commonwealth v. Viall, 2 Allen, 512. Long user or lapse .of time is not essential, as in cases of prescription, to such dedication : Washburn on Easements, (*136), (*139); Cincinnati v. White's Lessee, 6 Peters, 431, 438; Hunter v. Trustees of Sandy Hill, 6 Hill, 407, 413; Tyler’s Amer. Ecclesiastical Law, § 977 ; Burke v. Wall, 29 La. An., 38, 47. The right to use land for burial purposes only is an easement. The fee of the soil and legal title remains in the owner, who has lost and is estopped from asserting any right of possession inconsistent with the full enjoyment of the use : Washburn on Easements, (*137), (*155), (*157), (*515) ; Kincaid’s Appeal, 66 Penn. St., 411; Railroad Co. v. Williams, 35 Ohio St., 171; Board of Education v. Edson, 18 Id., 221; Boston &c. W. & P. Co. v. B. & W. R. R. Co., 16 Pick., 522; Edwards v. Stonington Cem. Ass., 20 Conn., 447; Hunter v. Trustees of Sandy Hill, 6 Hill, 407, 412; Cincinnati v. White’s Lessee, 6 Peters, 431, 437. The use of land for public burial purposes is in its nature exclusive, and deprives the owner of the right to possession or beneficial enjoyment during the continuance of the use: Hunter v. Trustees of Sandy Hill, 6 Hill, 407, 412; Louisville v. Nevin, 10 Bush, 549; Commonwealth v. Viall, 2 Allen, 512; First Evangelical Church v. Walsh, 57 Ill., 363 ; Cincinnati v. White's Lessee, 6 Peters, 438, 443. The owner may be restrained by injunction from in any way interfering with or disturbing the use. If he does so, he is liable to an action for damages: Boyce v. Kalbach, 47 Maryland, 334; Moreland v. Richardson, 24 Beavan, 33; Church v. Church, 2 Brewster 372; Kincaid’s Appeal, 66 Penn. St., 411; Commonwealth v. Viall, 2 Allen, 512; First Evangelical Church v. Walsh, 57 Ill., 363; Beatty v. Kurtz, 2 Peters, 584. During the continuance of the use of the land as a burying ground, the owner cannot maintain ejectment or recover the possession: Hunter v. Trustees of Sandy Hill, 6 Hill, 407, 414; Cincinnati v. White’s Lessee, 6 Peters, 431, 441; Washburn on Easements, (*155), (*157). Upon the termination of the use and easement, the right to the possession and enjoyment of the land reverts to the owner: Board of Education v. Edson, 18 Ohio St., 221; Railroad Co. v. Williams, 35 Id., 171; Washburn on Easements, (*146). No possession can be held to-be adverse to one who has no right of entry during its continuance, or who is not thereby hindered or disturbed in the enjoyment of his own rights: Taylor v. Thorn, 29 Ohio St., 672; Holt v. Lamb, 17 Id., 374; Koltenbrock v. Cracraft, 36 Id., 584; Gernet v. Lynn, 31 Penn. St., 94; Raymond v. Holder, 2 Cush., 269 ; McClelland v. Miller, 28 Ohio St., 489, 502; Washburn on Easements, (*92) ; Parker v. Framingham, 8 Metcalf, 260, 266, 268; Morton v. Moore, 15 Gray, 576.

      The evidence clearly shows that in 1873 the church voluntarily discontinued and abandoned all further care or use of said lot No. 86 as a burying ground, and we claim that thereupon the right of Watts or his heirs for possession accrued.
    III. As to the equitable issue. We contend that the evidence does not establish that Watts agreed to convey lot 86 to the church, or that there was any mistake in the deed for lot 81, or that there was any valuable consideration for such conveyance, or that the church, after said deed was made, took possession or made any valuable or lasting improvements under or in reference to such agreement or deed or otherwise.
    We further insist that the deed sought to be reformed does not purport to be and was not for a public charity; and further, that courts of equity will not reform a voluntary conveyance for a charity. A voluntary conveyance to an incorporated church for its sole use and benefit is not a gift for a public charity. A voluntary agreement to give or convey for a public charity cannot be specifically enforced, nor can an imperfect gift for such purpose be reformed. A design to make a gift for a purpose of public charity must be executed or it is ineffectual. Watts never made any conveyance, perfect or imperfect, of lot 86.
    We further insist, that after the church has held in its possession for over fifty years the deed for lot 81, and during all that time has acquiesced and made no application or effort to change it, any equity for relief on the ground of an alleged mistake is stale and cannot be now set up. The mistake, if any, arose from the carelessness of the church. The church always had at hand ready means of correct information. The delay is wholly unexplained. The transaction is obscured by time. The witnesses, who could fully explain it, are all dead. The possession (if any) of the church was for the easement of burial exclusively, was commenced long before any deed from Watts, was continued afterward without change, and was not of a character to aid the church in seeking any reformation. Its so-called possession was not united with any claim on its part.
    There is no sufficient evidence of the alleged agreement, intention, or mistake.
    No direct evidence was offered to sustain either of these allegations. No witness ever heard any negotiation or admission of such agreement, or any admission or declaration of such intention, or any claim or acknowledgment of such mistake. No letter or memorandum or other writing in reference to any such matter was found or offered. No reference whatever thereto is found in the church minutes. For over fifty years the church was silent, and during all that time neither the church nor any officer or member thereof made any such claim. Courts, in interfering to correct an alleged mistake, are very careful that they may not even by possibility make a mistake: Shively v. Welsh, 2 Oregon, 288; Ins. Co. v. Crane, 16 Md., 260; 1 Story’s Eq. Jur. (Redfield’s Ed.), § 157; Lewis v. Lewis, 5 Oregon, 169; 6 Ohio St., 459; 27 Id., 84.
    The Watts heirs have the legal title, and' their equity is at least equal to any of the church. The .land was purchased by their ancestor, and they stand in his shoes. The fact that John Watts generously permitted the use of the lot for a public burying ground affords no reason that he should forfeit or be deprived of his reversionary estate. Such a rule would punish liberality, and discourage all public benefactions.

      David Stuart Hounshell, and Benjamin M. Piatt, also for Piatt and Watts.

    The facts qf this case constitute a well-defined dedication of lot 86 to the public at large, .as a burial ground. No definite period is requisite to constitute a dedication. A single day, with evidence proving intention, is sufficient. A dedication may be either express, that is, by deed; or by implication, as a general user by the public acquiesced in by the title holder. The authorities are numerous and extremely clear on this subject: 6 Hill, (N. Y.), 407; 11 Penn. St., 444; 7 Ohio, 135 ; 18 Id., 18; 2 Ohio St., 167; 12 Georgia, 239; 4 (N. H.), 537; 1 Wheat, 469; 2 Watts, (Penn.), 23 ; 1 Spence, (N. J.), 86; 8 B. Monroe, 234 ; 3 Sandf., (N. Y.), 502; 7 Ind., 641; 2 Wisc., 153. When a dedication is made to the.public for a burial ground the fee remains in the donor who has given the use for burial purposes. Dillon on Municipal Corporations, chap. XVII., sec. 496; Lade v. Shepard, 2 Stra., 1004; Parish v. Jacobs, 25 Law T. Rep. (N. S.), 800 ; Groodtitle v. Alker, 1 Burr, 153; Harrison v. Parker, 6 East, 154; Jackson v. Hathaway, 15 Johns., 447 ; Perley v. Chandler, 6 Mass., 454; Pomeroy v. Mills, 8 Ver., 279; Des Moines v. Hall, 24 Iowa, 234; Dubuque v. Maloney, 9 Iowa, 450 ; Boston v. Richardson, 13 Allen, 152, 153; White v. Godfrey, 97 Mass., 472; Bliss v. Bull, 99 Id., 597.
    The right the public acquires under a dedication is not a right or fee in the soil, but only an easement or servitude, subject to which the owner still holds the title and the interest not dedicated: City of Cincinnati v. White's Lessee, 6 Peters, 431, 432, 435, 439, 441; People v. Lawson, 17 Johns., 277, 279 ; Co. Litt., 56 a.; Woolwich v. Ways, 14, 15, 51, 52 ; Payne v. Patrick, 3 Mod., 294; Rex v. Lloyd, 1 Campb., 260; Rex v. Barr, 4 Campb., 16 ; Commonwealth v. McDonald, 16 Serg. & Rawle, 390; Todd v. Roome, 2 Greenl., 61; Estes v. Troy, 5 Id., 366 ; State v. Wilkinson, 2 Verm., 481; State v. Catlin, 3 Id., 530, 534, 535 ; State v. Trask, 6 Id., 355, 363 ; Trustees of Watertown v. Cowen, 4th Paige, 514; McConnell v. Town of Lexington, 12 Wheat., 582; Co. Litt., 110 b.; Id., 113 b.; 3 Cruise’s Dig., 525, 526, tit. 31, Prescription, ch. 1, 7, 8, 9; Id., 531, secs. 22, 23, 25; Perley v. Langley, 7 N. H. 233 ; French’s Case, 4th Co. R., 32; 1 Saunders, 341, n. 3; 3 Cruise’s Dig., 530, tit. 31, Prescription, ch. 1, secs. 10, 21; Paine v. Patrick, 3 Mod., 393, 394; Ham. (N P.), 172, 178, 179; Foxall v. Venables, Cro. Eliz., 180; King v. Jolliffe, 2 Barn. & Cress., 54; 8 Kent’s Comm., 436, 442, 443, 3d Edition ; Pritchard v. Atkinson, 4 N. H. 14 ; Gateward’s Case, 6 Co. R., 60 ; Sherborn v. Bostock, Fitz., 51; Fitch v. Rawlings, 2 H. Black, 393;
      Grimstead v. Marlowe, 4 T. R., 717; Blewett v. Tregoning, 3 Adolph. & Ellis, 554; 30 C. L. R., 163; Weakley v. Wildman, 1 Lord Raym., 405; Selby v. Robinson, 2 T. R., 754; Cooper v. Smith, 9 Serg. & Rawle, 32, 33.
    As long as the public continues .the user of the land dedicated the owner is estopped from interfering with the public right, but as soon as the public abandons the use, then the land reverts to the donor or original owner: Dillon on Mun. Corp., Chap. XVII., See. 515; Williams v. The Church, 1 Ohio St., 478; Webb v. Molar, 8 Ohio, 552; Price v. M. E. Church, 4 Id., 514; Brown v. Manning, 6 Id., 298; LeClerc v. Gallipolis, 7 Id., pt. 1, 217; Borad v. Edson, 18 Ohio St., 221; Barclay v. Howell's Lessee, 6 Peters, 498, 507; Price v. Thompson, 48 Mo., 363; Warren v. Lyons City, 22 Iowa, 351; Harris v. Elliott, 10 Peters, 25; County v. Newport, 12 B. Monroe, 538; Augusta v. Perkins, 8 Id., 207.
    In the case at bar, the First Presbyterian Society in Chillicothe, as well as the public at large,- had discontinued the user of lot 86 as a burial ground, and wholly abandoned it as'such. The title remaining in the heirs of John Watts as above shown, the moment lot 86 was abandoned as a burial ground by said society and the public, said heirs were seized in fee of said reversion in said lot: Hunter v. Trustees of Sandy Hill, 6 Hill’s Rep., pp. 414, 415.
    As to the mistake in the deed. There is no evidence, documentary or parol, to establish the alleged mistake, whilst the record shows that in 1823 lot 86 was covered with graves. The title of the public and said society .to the user, for burial purposes, of lot 86, was then' complete; yet it was quite natural that John Watts should add the adjacent lot 81 to 86, already dedicated for burial purposes, and which was then covered all over with graves.
    The dedication by Watts of lot 86 to the public, in the eighteenth century, would have estopped him, as against the public, in conveying lot 86 to the First Presbyterian Society, in Chillicothe, a corporation created by act of the legislature in the year 1810. Such deed, had it been attempted would have been void, as divesting the public of the right of burial in said lot, and conveying the fee simple thereor to said society, which they at any time may have disposed of in derogation of public right long exercised.
    The deed of November 4th, 1823, was voluntary. The consideration was nominal. The one dollar, everyone must know, was never paid, and had it been it could have been set aside by the creditors of Watts, if he had any, and was insolvent, as the record shows these lands, as early as the year 1802, were valued at fifteen dollars an acre, when the suit was instituted by Watts against Massie in the Kentucky court.
    If the intention of Watts had been to convey lot 86, and he, by mistake, conveyed lot 81, nobody ever knew of such mistake, or intention, who has been examined as a witness in this record; nor do any papers of record show any such fact; and its very existence, at any time, is denied by Watts’s heirs in their answer and cross petition. Fifty years would stale any equity to correct any mistake in a deed executed without fraud. Had John Watts attempted to convey lot 86 in 1823, in the absence of all proof to the contrary, it must be presumed that he did it voluntarily in furtherance of the dedication made more than twenty-four years before.
   Granger, C. J.

Watts’s representatives urge that the district court erred in overruling their motion to dismiss the Gregg appeal. Under the statute authorizing the action the fund stood in place of the land. As the church was in possession adverse to the claims made under Gregg and Watts, neither set of those claimants eould maintain any action at law to determine which of the two had the better right. The church might have called both sets into court to quiet its own title. In such case, neither of them could of right demand a trial by jury. This action grows out of a proceeding, by which the railway company sought to take the place of the church, as actual possessor of the land, and at the same time to make sure that the purchase money should go to the real owner, so that its title might remain undisturbed. Although Robert Gregg’s heirs filed the petition in the common pleas, we think the action should, as between them and the representatives of Watts, be treated as if these rival claimants were in court at the instance of the church, under a bill of peace. Hence, it seems to us that the motion to dismiss the appeal was properly overruled. The proceeding for appropriation was under the Act of April 23, 1872, (69 Ohio Laws, 88), but as!sections 18, 19, and 20 of that Act are substantially the same as sections 6442, 6443, and 6444 of the Revised Statutes, we refer to the latter. They do not grant any right to a trial by jury. They only preserve existing rights as to mode of trial. Their appeal being sustained, the next question is as to the validity of their claim.

The supreme courts of the United States and of Ohio, have concurred in holding that a legal entry, properly completed, appropriates the land covered by its terms; that a survey of land not within those terms is void; that until after patent issued the doctrine of notice does not apply; that prior to the patent no legal rights except that of the United States can be obtained; that the equities are to be governed by recognized equitable rules; that when the patent is issued, the grantee takes the legal title in trust for him who has the controlling equity. The Ohio decisions on these points have been collated in Swan & Critchfield’s Statutes, p. 555, and in the Ohio Digest. See also Massie v. Watts, 6 Cranch, 148, and Kerr v. Watts, 6 Wheaton, 550. Counsel before us have cited freely. We will not quote. We are satisfied that Nathaniel Massie, while employed to complete an entry and survey for a distant principal, made a void survey for him and attempted to appropriate the O’Neal land for himself; that he was properly charged as taking that land in trust for Watts; that Watts’s equity was prior in time to that of Robert Gregg, and superior thereto in degree, because the entry record was accessible to him, and Watts was not guilty of laches, and that Massie’s heirs took the patent in trust for Watts. Therefore we think the finding that the Gregg claim is invalid was right.

This brings us to the issues between the church and the claimants under Watts. The record satisfies us, clearly and without a doubt, that John Watts intended to convey the full title to lot 86 to the church. But we are urged to hold that the district court erred in sustaining the equity of the church because it was a mere donee, and that too for a use not a charitable public use. Although many cases are cited none of them are so similar to this one as to require us to reverse the decree of the trial court.

The deed before us is a perfect deed. Under Hall's Lessee v. Ashby, 9 Ohio., 96, it passed the legal title to lot 81. If the church had sought to possess that lot, could Watts have defended his own possession? Or if they had entered, could he have ousted them without asking equity to use its power on his behalf? ' In such a ease would equity have granted him relief from the effect of his own mistake, without requiring him to correct that mistake ?

If the mistake had been discovered in his lifetime, probably it would have been corrected by an exchange of deeds between him and the church. Although it was not discovered, the parties by their conduct effected a correction. Although its deed was on record, the church’s action allowed the Watts estate to convert to its own use the more valuable lot of the two, while Watts and his devisee and executor never made claim to any interest in lot 86. Although it is perhaps true that neither of them could have ejected the church, because they had permitted burials to continue after the decree of 1821, the fact that they made no claim of any kind is not without weight under the peculiar circumstances of the case.

We think that although the church lost, by the passage of years, all right to claim lot 81, there was a time when it might have used the deed to Watts’s prejudice. Believing that its deed gave it lot 86, it remained quiet; and because of that belief, justified by Watts’s conduct, its position was materially altered long before 1877.

Moreover, the value of lot 86, in 1823, was not greater than one dollar. Watts’s hand and seal tell us that he conveyed the lot in consideration of that sum, and that he received it. No witness has said that he did not receive it. The deed itself refers to no other consideration. While evidence was admissible to show that the money was not paid? an equity court ought not to presume that the one dollar was nominal or that it was not paid, merely to give to the representatives of John Watts a lot which their ancestor intended to convey in fee simple to the church, and died believing that he had so done.

If Watts had made no deed his quiescence would only have effected a dedication for a graveyard, and on the termination of the use his representatives would have a clear right to the lot. But having made a deed which he intended should convey the entire title, and which he supposed had so done, his conduct is properly referable to the deed. Taken with the deed his conduct was a confirmation of the conveyance of lot 86. Those representing him must be held by a like construction, at least up to a disavowal. For more than half a century, on the side of the grantor, as well as on that of the grantee, the deed of 1823, has been treated as a complete conveyance of lot 86. We cannot think the trial court erred in giving effect to the conveyance so made. The cases in which equity has refused to correct mistakes differ, as it seems to us, widely and materially from the one at bar. A complete conveyance of one lot, with actual possession of the other by the grantee for more than half a century, under the deed as understood by the parties, presents a case swi generis. We are unwilling to' make a precedent denying the grantee’s equity in such a case.

A number of other questions were incidentally made. A brief reference will be made to some of them.

The Robert Gregg heirs urge that the church is estopped to deny their title, because it accepted Nathan’s deed. It is well settled that the grantee in a deed that purports to convey the entire title is free to buy in, or accept, and to assert any other title. Nathan Gregg’s deed left in him a reversion assertable whenever the specified use terminated. Perhaps the church could not use its possession taken under his deed, to the prejudice of such reversion. But, in this tripartite contest, the Watts title defeats that of Gregg without any aid from the church. The Greggs cannot rightfully complain because the church so uses the Watts deed as to transfer the victory to itself.

The Watts heirs urge that the church did not act, or claim, or hold, under the deed of their ancestor, because, at some of the meetings of its trustees, those present seemed ignorant of the Watts deed, and spoke, or resolved, as if they only knew of and relied on that of Nathan Gregg. It is well known that corporation officers frequently change. It is natural, therefore, that after the passage of years incoming officers should be ignorant of many facts in the history of the corporation. The incidents put in evidence established only that, when the Watts deed was almost 50 years old, officials learning from the early minutes of the corporation that the lot was conveyed' to the church in 1810, did not look farther, but supposed that the deed of that year constituted the church’s title. The acceptance of the Watts deed, and its prompt presentation for record, sufficiently prove that from its delivery'-, the church held under it, as grantor and grantee supposed it to be.

The Watts heirs objected to the admission in evidence of the deed, made by Watts and by his executor and devisee, after November, 1823, conveying lots adjacent to or in the vicinity of lot 86. The conveyance of lot 81 to Shepherd was a part of the conduct of the parties touching the two lots in question. As such it was admissible and valuable. As to the others, their presence in the .record did not and could not do any harm to the Watts claim, even if they ought not to have been admitted. If that admission was error it was error absque injuria. A majority of the court affirms the judgment complained of.

Judgment affirmed.

Mastín and Macattley, JJ. dissent.

Martin, J.

I concur in the finding that the claim of the Watts heirs is superior to the Gregg title. And believing that the church has not succeeded to the Watts title it is not neccessary to enquire whether it may dispute the Gregg title under which alone it entered into'and retained possession.

I dissent from the conclusion that the church has any right or equity under Watts.

The issue arises upon the cross petition filed by the church setting up the Watts deed of 1823, and .seeking its correction upon the ground of an alleged mistake in the description of the property intended to be conveyed, namely, that the deed conveyed lot 81 when the intention was to convey lot 86. It was given on the expressed consideration of one dollar to the trustees of the church and their successors forever. No trust is indicated; and the church as a private incorporated society took the title to lot 81 in fee simple, and could ostensibly have sold the same and disposed of the proceeds at will. If the conveyance had been of lot 86, which was at the time an old graveyard, it would have been subject to the easement and have passed the reversion only. The claim of the church rests on the validity of the Watts title and on an unexecuted contract to convey it.

To entitle a party to the equity of correction and specific performance, the mistake must be shown to have been mutual and must be made out by clear and indisputable evidence; and the contract or promise itself must be supported by a valuable consideration. The decision of the majority of the court is placed on these propositions, viz.: 1st. That the testimony clearly establishes the mistake; and 2d. That the equity is available because the expressed consideration of one dollar is a valuable consideration in this particular case; and that if it is not, the long acquiescence of the Watts heirs is an equivalent by way of estoppel.

The controversy arose some fifty years after the date of the deed. Watts and the witnesses to the deed and all other persons supposed to have any personal knowledge of the transaction were dead when this controversy arose. The theory of mistake rests wholly on conjecture. Its most plausible, if not sole support is the fact that Watts died leaving an outstanding contract for the sale of lot 81, which was executed by his heirs. But many conjectures readily, suggest themselves, some of which are quite as plausible as that of the specific mistake relied on here.

And after this great lapse of time, with no intervening adverse claim or question of any kind, the law wisely supplies the most satisfactory conjecture in the presumption of a lost reconveyance. At any rate mere conjecture falls far short of that clear proof required by law.

But assuming the fact of mistake as claimed, the conclusive objection remains that the promise was voluntary. The expressed consideration was one dollar; and there is no evidence on the subject save this acknowledgment in the deed. A deed is the act of the grantor, and is made presumably at his expense; and everybody knows that as a consideration for land expressed in a deed the sum of one dollar is always a nominal consideration. In the absence of any testimony to the contrary it would seem that this acknowledgment was for a technical and fictitious purpose, like that of a pepper-corn in a lease. It is nominal in fact, though valuable in kind. And in a deed it is held to express value to some extent, and parties are sometimes estopped to set up the truth that it is nominal. But of course it is not so in the case of executory contracts or promises.

I confess my inability to appreciate the proposition that the Watts heirs are in any wise affected by their alleged acquiescence. They were owners of the reversion only, arid had no right or duty with respect to the easement except to acquiesce in it. As long as the lot contained graves they, as reversioners, wex’e postponed. Their only acquiescence was in doing nothing, whexx there was no adverse possession or claim and no right to do anything. They had no cause of complaint, not even “slander of title.” The little (and it was very little) that was done by the church in repairing fences, etc., was done at the expense of the public on subscription for the purpose, and was done in the line of their agency or custody over the easement, and was not only consistent with its possession under Gregg, but in law and fact is referable to it. For what duty can a reversioner as such have in the control of the easement ? I think that this alleged equity is an afterthought.

It may not be amiss to add that no neglect or carelessness is charged against the Watts heirs; whilst it stands confessed that for more than fifty years before suit the church had the deed sought to be corrected; and if it now has a cause of action it had it during all that time. This is a circumstance of great weight, especially in chancery. As Story observes, “great delay is a great bar in equity.”


source: Caselaw Access Project

author: McCauley, J.

license: Public Domain

text:
    Lucas v. Scott.
    L., the owner of a tract of land, and his wife, signed a contract by which they jointly agreed to sell the land to S. and to convey it by deed of general warranty; but L., by the contract, did not agree to convey with release of dower by his wife. And the circumstances of the sale show that he would have refused to agree to convey with release of dower by his wife and this fact was known to the purchaser. At the time agreed upon for performance of the contract the wife of L. refused to join her husband in the execution of the deed, and her refusal was not induced by any act, advice or procurement of her husband.
    In an action by the purchaser against the husband for a specific performance of the contract, held: that it was error to decree a specific performance against the husband with an abatement from the contract price of the land, of the value of the prospective dower of the wife.
    Error to the District Court of Jackson' County
    The defendant in error brought his action against the plaintiff in error for the specific performance of a contract between them for the sale of a certain tract of land. The contract was: “ For valuable consideration Robert C. Lucas and. Mary A. Lucas, bis wife, of the township of Lick, Count}' of Jackson and state of Ohio, propose to sell by deed of general warranty to Benjamin F. Scott, of the township of Washington, county .of Jackson, Ohio, certain lands situate in the townships of Washington and Lick, in said county and state, and described as follows, to wit: #■»%##*#
    “ Now the condition of this contract is, that if the said Benjamin F. Scott shall elect to take said lands on or before the 1st day of April, A. D. 1881, at the rate of seventy-five ($75) dollars per acre and pay for the same in three payments as follows, to wit: One third cash on the first day of April, 1881, at which time the deed to said lands are to be executed and delivered, one third in one year from said date, and one third in two years from said date. Said deferred payments to draw interest at 5 per cent, from date, and to be secured by mortgage on said premises, then this contract to be and remain in full force and effect, otherwise to be considered null and void. In testimony whereof the said Robert C. Lucas and Mary A. Lucus, his wife, have hereunto set their hands and seals this 30th day of November, A. d. 1880.
    Signed in the presence of ) Robert C. Lucas [Seal.] Ambrose Leach, Jr. V Mary A. Lucas [Seal.] ” David Davis. )
    The' plaintiff in the court below averred that on the 25th day of March, 1881, he elected to take the lands upon the terms provided in the contract, and that he thereupon notified Lucas of his intention, and that on the first day of April, 1881, he tendered to Lucas the full amount of the payment to be made at that time as provided by the contract, and also tendered performance in full of all parts of the contract to be performed by him and thereupon asked judgment, that the said Robert C. Lucas be required specifically to perform said agreement by conveying to him by deed of general warranty the land and premises as hereinbefore described, free and clear of any incumbrance of.dower in favor of the said Mary A. Lucas, wife of the said Robert C. Lucas; but in the event- it shall appear that it is impossible for the said defendant to make title divested of said dower interest, or that it would be inequitable to require him to do so, then that the said defendant be required to convey his interest in said lands and premises, and that an abatement be made from the contract price to an amount equal to the value of said contingent dower interest, to be ascertained by the proper computation.
    To this petition the defendant set up three defenses: First, at the time the written contract was made Mary A. Lucas was the wife of the defendant, and for a long time’ before that had been his wife, and that this was known to the plaintiff and that the plaintiff then knew that said Mary A. Lucas was not willing to sell the land and he took upon himself to procure her signature to the contract. Second, he denied that a tender of purchase money had been made for the amount required by the contract, and third, that said Mary A. Lucas upon her own motion refused to join him in the execution of a deed for the land, and further, that he was willing on his part to execute and deliver his deed for the land, and that on April 1, 1881, he tendered to the plaintiff his deed for the land. The case was tried on appeal in the district court upon an agreed statement of facts and the testimony of the parties. Upon the controlling facts of the case there was no serious conflict in the testimony.
    The defendant, Lucas, testified that he had a conversation at the court house in Jackson, with Scott, and told him that he did not think his wife would sign the deed and they had better drop it; that Scott answered him “that he would not bother him on her account.”
    Scott, the plaintiff, testified that he and Lucas had talked about going to Jackson to have the contract written; that when they met in Jackson, Lucas said his wife had come with him ; that he had mentioned the contract to her, and that she would not answer him, and asked him, Scott, to see her, that perhaps she would talk to him, and that he had learned that Lucas and his wife were not on good terms.
    The district court found the whole amount of the purchase money to be $10,600, and decreed that the defendant, Lucas, execute and deliver to Scott his deed for the land, and found that the age of the husband was fifty-nine years and the age of his wife was twenty-seven years, and found further that the value of the expectancy of dower of the wife was $2,677.04, and decreed that this sum should.remain a lien upon the land, the amount of it to be paid to Lucas in case he outlived his wife, and in case she outlived him the land to be released from any lien on account of it.
    The defendant below files his petition in error to reverse this decree.

      John T: Moore & Son and C. A. Atkinson for plaintiff in error.
    I. The question here presented is, Can Scott compel Robt. C. Lucas to perform on his part, with an abatement from the purchase price for the contingent right of dower, Lucas not being in fault, but being willing to perform, and only prevented by his wife’s refusal to join.
    We maintain that he cannot.
    The vendee, by his own intentional act, made the performance to depend upon the consent of a married woman, knowing that she could not be compelled to perform — she withholds her consent. Performance cannot be enforced— it has become impracticable. Pomeroy on Contracts, p. 278, Sec. 295, and notes 2 & 8.
    II. Compensation or abatement will only be decreed in cases, where the vendee has been misled, or there has been some-change or mistake by which he would lose something. 2 Parsons on Contracts, ed. 1860, p.558; Dyer v. Hargrave, 10 Ves., 506; Pomeroy on Contracts, §§ 217, 221 and note 1; 26 Ohio St., 334; Pomeroy on Sp. Per., §§ 346, 442; Waterman Sp. Per., §§ 317, 506; Peeler v. Levy, 26 N. J. Eq., 330; Franz v. Orton, 75 Ill., 100.
    III. But the direct question, whether or not specific performance can be had, where a wife refuses to join her husband in a deed has, to some extent, engaged the attention of courts and of law writers. See 1 Story Eq., §§ 731 to 735 and note to § 734; Pomeroy on Sp. Per., §§460, 461; 26 N. J. Eq., 330; Bailey v. James, 11 Grat., 468; Clark v. Seirer, 7 Watts, 346; Greenleaf v. Queen, 1 Peters, 138; 17 Ohio, 75; Waterman on Sp. Per., § 511; Murdock v. Lantz, 34 Ohio St., 598.

      W. A. Hutchins and David Davis for plaintiff in error.
    1. The vendee may require the vendor to perform, so far as he has title, and for any deficiency, compensation will be awarded, by way of abatement, out of the purchase money or as damages. Pomeroy on Specific Performance, §§ 438, 439 and cases cited; Waterman on Specific Performformance, § 499 and cases cited; Courcier v. Graham, 2 Ohio, 341; Williams v. Champion, 6 Id., 169: Wright’sOhio Reports, 406 and 656; Pollock’s Principles of Contract, 473 and cases cited.
    2. Where the wife of the vendor refuses to release her contingent dower interest, the vendee may require a conveyance of the husband’s interest, and have an abatement out of the purchase money to the extent of such dower interest. Wright v. Young, 6 Wisconsin, 125; Wingate v. Hamilton, 7 Ind., 73; Hazlerig v. Huston, 25 Id., 481; Springle v. Shields, 17 Ala., 295; Troutman v. Gowing, 16 Iowa, 415;. Yebly v. Sears, 38 Id., 507; Heimburg v. Ismay, 35 N. Y. Sup. Ct., 35; Davis v. Parker, 14 Allen, 94; Woodbury v. Luddy, 14 Id., 1; Curran v. Water Co., 116 Mass., 90; Richmond v. Robinson, 12 Mich., 193; Yost v. Devault, 9 Iowa, 60; Allison v. Shilling, 27 Texas, 450; Brewer v. Wall, 23 Id., 585; Williams v. Pope and others, Wright’s O. R., 406; Reynolds v. Clark, et. al., Id., 656.
   McCauley, J.

The rule is well settled “ that a vendor whose estate is less than or different from that which he agreed to sell, or who cannot give the exact subject matter embraced in his contract, will not be allowed to set up his inability as a defense against the demand of a purchaser who is willing to take what he can get with compensation for that which the vendor cannot convey.” Pomeroy’s Sp. Per., § 438, and authorities there referred to. This rule, however, is limited to those eases in which the purchaser had no knowledge at the time the contract was made, that the interest of the vendor was partial; that his title was defective, or that the subject matter was deficient. Pomeroy Spec. Per., Sec. 442. The purchaser here knew that the vendor had a wife. He did not contract with Lucas that he should convey the land with release of dower by his wife. The testimony of both parties on the trial tends to show that Lucas would not have made such a contract. He had doubts whether his wife would agree to the sale of the land. He sent the purchaser to, his wife to get her to agree to a sale. The purchaser persuaded her to sign the contract, when it was probable she would have refused to sign at the request of her husband. The purchaser knew that Lucas could not control his wife in the matter, either of making the contract to sell the land or in making him a deed for it, and that he would not be responsible for the refusal of his wife .to join him in the execution of a deed. Passing by the question whether or not a contract to convey by warranty deed is equivalent to a contract to convey by such deed with release of dower, the purchaser asking for a conveyance by the husband with an abatement for the prospective dower of the wife, asks the court to do for him what he knew at the time the contract was made, the purchaser would not have undertaken to do. . If a contract to convey by warranty deed is equivalent to a contract to convey by, such deed with release of dower by the wife, still a remedy which is not a matter of absolute right, but which is given only on equitable principles should be denied to a party who asks for that for which his contract does not expressly provide, and which, if insisted on at the making of the contract he then knew would not have been assented to by the other party. , ■

Judgment reversed.


author: Dickman J.

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    Harvey v. Gardner.
    1. In this state it is competent to prove an express trust in lands by parol evidence.
    2. H., “for one dollar and other valuable consideration,” by an instrument not under seal and absolute on its face, transferred to his three sons all his “ right and title in ” certain mineral lands, of which the legal title was in another. An iron company was thereafter organized under the laws of this state, a large part of the capital stock of which was subscribed by those holding interests in the lands, and the lands were all conveyed to the company and accepted by it in full payment of the stock subscriptions. The certificates of the stock subscribed by two of the sons in their own names, were issued, at their instance and request to their respective wives, and the two sons — partners in business — subsequently assigned their partnership and individual property in trust for the benefit of their creditors. In an action by the assignees to declare such certificates of stock fraudulent and void as against the creditors, Held:

    That declarations of H. at the time he transferred to his sons his right and title in the mineral lands, were admissible in evidence, for the purpose of proving that such transfer was made to his sons in trust, for the use and benefit of their respective wives.
    3. The acceptance of an express parol trust engrafted upon an absolute grant of an interest in land, may be presumed from acts of the grantee • at or subsequent to the time of the grant.
    Error to the District Court of Cuyahoga County.
    In the year 1867, H. B. Tuttle entered in his own name in the United States land office, at Menosha, Wisconsin, about 3,655 acres of land in said state, supposed to be mineral lands, the purchase money of which was paid equally by himself and' Henry Harvey. In return for services rendered, it was agreed, that Charles Whittlesey should have an interest in the property, and accordingly, said H. B. Tuttle, in whom the legal title was vested, signed and gave to said Henry Harvey a certificate of ownership describing the lands, their entry, &e., and showing that the property belonged in joint interest as follows : One fourth to Charles Whittlesey, three eighths to Henry Harvey, and three eighths to H. B. Tuttle. In November, 1874, Henry Harvey wrote on the bottom of his said certificate of ownership the following assignment to his sons, William H. Harvey, Henry A. Harvey and E. H. Harvey:
    “ For one dollar and other valuable consideration, whereof the within is a receipt, I hereby assign to W. H. Harvey, Henry A. Harvey and E. H. Harvey, all my right and title in the above lands. H. Harvey.”
    No deed was ever made to either of the sons. In the early part of February, 1877, the Commonwealth Iron Company was organized under the laws of Ohio, and one half of its capital stock of $500,000, was subscribed by those holding interests in the Wisconsin lands — the said William H. Harvey, Henry A. Harvejr and E. H. Harvey, each subscribing for 1,250 shares. On February 16, 1877, the stockholders met, and authorized the president to purchase and receive from H. B. Tuttle a conveyance of the lands before mentioned, and agreed that the deed, when received, should be accepted in full payment of $250,000, capital stock, subscribed by the said Harveys and others. This conveyance was made by said’Tuttle, and in May, 1877, certificates of stock were issued to the subscribers. Certificates of the stock subscribed by William H. Harvey were issued to his wife, M. Josephine Harvey; and certificates of the stock subscribed by Henry A. Harvey were issued to his wife, Mary C. Harvey.
    In November, 1877, the said William H. Harvey and Henry A. Harvey, partners under the firm name of H. Harvej’s’ Sons, being insolvent, made an assignment of all their property and effects belonging to them as partners, as well as their individual property, to Samuel E. Williamson in trust for the benefit of their creditors. Williamson soon thereafter fesigned, and the defendants in error, George W. Gardner and Michael App, were duly appointed assignees of said estate in the place and stead of said Williamson. The said Gardner and App,- as such assignees, thereupon commenced the original action in the court of common pleas of Cuyahoga county, against the said William H. Harvey, Henry A. Harvey, M. Josephine Harvey, Mary C. Harvey and the Commonwealth Iron Company, for the purpose of having the stock certificates that were issued to the Said wives declared fraudulent and void as against the creditors of the assignors. In,the court of common.pleas a decree was taken against William H. Harvey, Henry A. Harvey a.nd their said wives. The said Harveys and their wives appealed to the district court, where the cause was heard upon the petition, answers and testimony.
    At the trial in the district court, E. H. Harvey was called as a witness on behalf of the defendants, who' offered to prove by him certain declarations of his father, Henry Harvey — at the time he made the transfer to his sons of his interest in the Wisconsin lands — in reference .to the object of such transfer. This evidence, it was claimed, would prove1 a conveyance of said interest in trust for the use and benefit of said sons’ wives, but the court excluded the evidence, and the defendants excepted.
    The examination of E. H. Harvey at the trial in the district court, as set out in the bill of exceptions embodying all the evidence, is as follows:
    “ Q. Mr. Harvey, you may state to the court what relation you were to the firm of H. Harvey’s-Sons, to the members that composed it? ■
    A.1 I was a brother of the -members.
    Q. You were the brother named in connection with this stock as Edward H. Harvey ?
    A. I am.
    Q. Will you tell the court whether you were present at the time when the transfer by H. Harvey of a certain paper was executed of which this is said to be a copy [Indicating ‘ExhibitNo. 1,’ hereto attached and made part of this bill of exceptions.] wherein the interest that your father had in certain lands that went to the Commonwealth Iron Company was at the time disposed of, November 24th, 1874. Were you present when that was signed?
    A. I was.
    Q. Where did that transaction take place ?
    A. At our office,' 71 Merwin street.

      Q. What business was carried on there at that time ?
    A. The milling business. . : .

    Q. At that time or just before the signing of that instrument by your father, did you. hear any conversation in ,. reference to the object of this transfer, and if so, what was. said by him ?
    (Objected to by plaintiffs. Objection sustained. Exception by defendants.)
    Defendants offered to prove by this witness, who was .present at the time the transfer, which has been offered in evidence, bearing date November 24th, 1874, was signed by H, Harvey; ’that he said at that time that this transfer was made for the use and benefit of their wives and children, and that he further said that the reason why it was put in the name of the boys was so as to facilitate, to make it more convenient for the handling of the matter in the organization and care of it.
    (All which was excluded by the court, and the defendants exceptecl.) ” '
    The said M. Josephine Harvey and Mary C. Harvey were also called as witnesses on behalf of the defendants, to prove statements and declarations made in May, 1877, by Henry Harvey, long after his transfer of his right and title in the mineral lands, to the effect, that he had given his interest in said lands to the wives of his said three .sons. But this testimony was rejected, and the defendants excepted.
    The district court rendered a ■ decree in favor of the assignees, and this proceeding is prosecuted by said M. Josephine Harvey and Mary C. Harvey to reverse the judgment of that court. •

      Samuel E. Williamson, J. E. Ingersoll and H. L. Terrell, for plaintiffs in error.

      Ranney & Ranney, Estep, Dickey & Squire, and McKinney & Caskey, for defendants in error.
   Dickman J.

Previous to the enactment of the statute of frauds of this state, a trust might be created in real estate by parol, and established by parol evidence, and there is nothing in our statute which prevents the establishment of an express trust in lands by evidence of the same kind. By the 7th section of the English statute of frauds, it is required that all declarations or creations of trusts of lands, shall be manifested and proved by some writing signed by the party who is by law enabled to declare the trust. But this section and the 8th and 9th sections of that statute in relation to trusts, are omitted from our statute, and express trusts are allowed to be proved by parol evidence, as well as resulting trusts which arise by operation of law, and are.unaffected by the statute. Fleming v. Donahoe, 5 Ohio, 255; Broadrup v. Woodman, 27 Ohio St., 553; Mathews v. Leaman, 24 Ohio St., 615.

While the evidence should be clear, certain and conclusive in proof, not only of the existence of the express trust at the time of the conveyance, but also of its terms and conditions, the trust may be engrafted by parol evidence upo.n a conveyance of real estate absolute on its face. Miller v. Stokely, 5 Ohio St., 194; Stall v. Cincinnati, 16 Ohio St., 169. Nor is this rule contravened by the 4th section of our statute, which refers to the assigning or granting of legal interests; nor by the 5th section, which prevents the bringing of any action to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them. And as said by the court, in Fleming v. Donahoe, supra, the creation of the trust in lands by parol is not to be considered as varying the terms of the deed, but only as setting up an independent contract consistent with it.

It is -claimed in behalf of the plaintiff in error, that William H. Plarvey and Henry A. Harvey were trustees for their respective wives, of one third each, of the interest in the mineral lands transferred by Henry Harvey to his three sons, on the 24th of November, 1874. Whether the grantees held the right and title in the lands as absolute owners, or in trust, we are not called upon to determine. The question arises, however, whether the court below erred in excluding competent evidence of the existence of the trust. It is contended that the declarations of Henry Harvey, at the time of the transfer of his interest in the Wisconsin lands, were admissible in evidence, for the purpose of proving that such transfer was made to his sons as trustees, for the use and benefit of their respective wives. We are of opinion that such declarations were admissible for that purpose. Where there is a written, conveyance of an interest in real estate absolute on its face, and the existence of a trust is not manifested or proved by the writing itself, and yet may be established b}r parol testimony, the parol declarations of the grantor’s intention at the time of executing the instrument and thus forming part of the transaction, would seem to furnish parol evidence of a high order, of the creation of the trust. At common law, uses declared by parol at the time, in the presence of witnesses, might be effectually established. Perry on Trusts, § 75; 1 Sand, on Uses, 14, 218 (2 Am. ed.) Mr. Lewin, in his treatise on Trusts, says, that trusts, like uses, are of their own nature averable, i. e., may.be declared by word of mouth without writing; as, if before the statute of frauds an estate had been conveyed unto and to the use of A. and his heirs, a trust might have been raised by parol in favor of B. Under the 7th section of the English statute of frauds, trusts need not be created but are only required to be manifested and proved by writing. Steere v. Steere, 5 Johns. Ch., 1. And this mode of creation will be none the less permitted where the legislature has failed to adopt the provisions of that section. If, therefore, the creation of a trust may be by parol, both under the statute and independently of it, it is proper that the parol declarations whereby it is created should be contemporaneous with the conveyance upon which the trust is to be engrafted.

If subsequent and not contemporaneous, the door might be open to constant frauds upon the rights of property. Where the conveyance is absolute on its face, it would be unsafe, and contrary to reason and the rules of evidence, to permit a third person — a stranger to the instrument — to use the parol admissions or declarations of the grantor, made long after the convej’ance, for the purpose of divesting the grantee of his rights bjqfastening a trust or incumbrance on the estate.

In Hubbell v. Hubbell, 22 Ohio St., 225, the court say: “Nor could the act or admission of William M. Hubbell, made after the transfer of all his estate in the premises to his wife, in any way affect the title of his assignee or of her heirs. In so holding, however, we do not deny that his subsequent declaration of the trust in writing (if a writing for that purpose be necesssaiy), would take the case out of the operation of the statute of frauds. But such declaration could not be used against his assignee to prove the existence of the trust.”

In Padgett v. Lawrence, 10 Paige, 170, the court .say: “ It is well settled that no declarations of a former owner of the property, made after he had parted with his interest therein, can be received in evidence to affect the legal or equitable title of the premises.” And in Thompson v. Herring, 27 Texas, 282, the court in language of a similar meaning say : “ It is perfectly well settled that the declarations of a party not in possession, after he has parted with his title, cannot be received for any purpose against his vendee. He cannot by his declarations or admissions affect or disparage the title of his vendee.” Indeed, these and other eases of like import recognize the principle, that the admissions or declarations must have been made while the party making them had some interest in the matter.

We are therefore of opinion, that, the court below erred, in excluding the evidence of E. H. Harvey, offered by the defendants to prove that he was present at the time his father signed the transfer to his sons, bearing date November 24, 1874; that he then heard conversation with his father in reference to the object of that transfer; and that the father then said, that such transfer was made in trust, for the use and benefit of the sons’ wives; and that the reason why he put the property in the names of the sons was in order to facilitate and make it more convenient for the handling and care of it. But, in our judgment, the court did not err in rejecting evidence of declarations by the father as to his motive in transferring his .interest in the Wisconsin lands, made by him after the transfer, and after the issue of the stock in the Commonwealth Iron Company to the sons’ wives.

It is urged, however, that if the testimony rejected had been admitted, it would not have availed the plaintiffs in error, without the addition of more testimony not offered. If Henry Harvey’s sons held the Wisconsin mineral lands only in a fiduciary capacity, it will not be claimed that the issue of the stock to their wives was in fraud of the rights of their creditors. The trust proposed to be proved was therefore most material, and the contemporaneous declarations of Henry Harvey, which were offered in proof of it, could not be rejected without prejudice to the alleged beneficiaries.

It is also contended, that, if it was designed to create a trust in favor of the plaintiffs in error, it never took effect, because it never was accepted by the grantees of Henry Harvey. The office of an express trust may be accepted by implication as well as expressly. If the trustee assumes its duties and liabilities, the omission of words of acceptance will not take from him his fiduciary character. In general, any gift by deed, will, or otherwise, is supposed prima facie, unless the contrary appears, to be beneficial to the donee. Consequently the law presumes, until there is proof to the contrary, that every gift, whether in trust or not, is accepted by the person to whom it is expressed to be given. Goss v. Singleton, 2 Head, 67; Penny v. Davis, 3 B. Mon., 313 ; Wilt v. Franklin, 1 Binn., 502; Townson v. Tickell, 3 B. & Ald., 36 ; Eyrick v. Hetrick, 13 Pa. St., 494. This presumption will be especially fortified, if the trustee has proceeded to the execution of the trust, or has voluntarily interfered with the trust property. If upon reading to the person selected as trustee the instrument upon which the trust is engrafted, he does not object, that circumstance, and others which might be instanced, will serve as evidence more or less conclusive, tending to prove the acceptance of the trust. Such acceptance may, indeed, be presumed from circumstances and from acts of the grantee at or subsequent to the time of the grant, without assuming in express words the obligations of a trustee.

The conveyance of his right and title in the mineral lands was made by Henry Harvey to his three sons jointly. The transfer was accepted by them, and if at that time there was a parol declaration of trust by the father, which was not objected to — and it is not claimed that there was any such objection — the grantees will be presumed to have received the subject of the grant, in connection with and as qualified by the accompanying declaration. Certain it is, that William H. Harvey and Plenry A. Plarvey afterwards proceeded to carry out what it is contended was the intention of their father. They acted in keeping with an acceptance of a trust for the use and benefit of their wives, and fully executed it by having the certificates of stock issued in the names of the cestuis que trust, and delivered to them in person.

An examination of the record discloses, in our view, no other error than that which we have hereinbefore considered. But by reason of that error the judgment of the district court must be reversed, and the cause remanded for further proceedings.

Judgment accordingly.