CHAPTER IV

BREAKING DESCENT

SECTION 1.-BY DEED

If a man be seised of lands as heire of the part of his mother, and maketh a feoffment in fee, and taketh backe an estate to him and to his heires, this is a new purchase, and if he dyeth without issue, the heires of the part of the father shall first inherite.

Co. Litt. 12 b.1

KIHLKEN v. KIHLKEN et al.

(Supreme Court of Ohio, 1898. 59 Ohio St. 106, 51 N. E. 969.)

MINSHALL, J. The land in question was devised to Henry Kihlken, now deceased, by his father; and he conveyed it to his brother John in 1888, on a written agreement that it was to be reconveyed on request. There was no real consideration for the conveyance, but it was done for a purpose we will not now consider. Before his death, Henry made the request, but died before a reconveyance was made. Thereupon John conveyed the land to Henry's widow, believing at the time that under the trust this was in accordance with his duty. This presents the first aspect of the question arising upon the facts as found. The claim of the plaintiffs below is that by reason of the fact that the land in question was devised to Henry by his father, and that Henry died without issue, it should descend to them. as ancestral property, under section 4158, Rev. St., notwithstanding the conveyance to John and by John to Henry's widow. This we think is erroneous. Had John, as requested, conveyed to Henry just

1 "But here Lord Coke must be understood to speak of two distinct conveyances in fee; the first passing the use as well as the possession to the feoffee, and so completely divesting the feoffor of all interest in the land, and the second regranting the estate to him. For if in the first feoffment the use had been expressly limited to the feoffor and his heirs, or if there was no declaration of uses and the feoffment was not on such a consideration as to raise a use in the feoffee, and consequently the use resulted to the feoffor, in either case he is in of his ancient use and not by purchase." Hargrave & Butler's note. See Holme v. Shinn, 62 N. J. Eq. 1, 6-8, 49 Atl. 151 (1901).

2 The statement of facts is omitted, and part only of the opinion is given.

before his death, the immediate title of Henry to the land would have been the deed of John, and not the devise of his father.

In Brower v. Hunt, 18 Ohio St. 311, after partition had been made between brothers of land devised to them by their father, two of them (Jacob and Thomas) exchanged the lands each had received in the partition, by a reciprocal execution of deeds. There was no other consideration received by either for his conveyance than the land received from the other. The court held that by this exchange the lands lost their ancestral character. The reasoning is stated as follows by White, J.: "The title mentioned in the statute is the title under which the intestate immediately holds. The title to these lands came to Thomas by deed of conveyance from Jacob, and the character of the consideration cannot alter the fact, and make that a title by devise from the ancestor which was in fact a title by deed from Jacob." It is true that in partition, though effected by deeds, it is held to be different, because partition acts only on the possession, and not on the title. Partition does not change the character of the title. Freeman v. Allen, 17 Ohio St. 527; Carter v. Day, 59 Ohio St. 96, 51 N. E. 967, 69 Am. St. Rep. 757.3

We are unable to see why the reasoning in Brower v. Hunt does not apply with equal force to the case before us. Had the conveyance been made by John to Henry in his lifetime, as requested, he would have died seised of them as nonancestral lands, under the deed, for whatever previous equity he had would have been merged in the deed; and the lands would have descended to his wife, under section 4159, Rev. St., as an absolute estate in fee simple. It is said in Stem

3 In Carter v. Day, 59 Ohio St. 96, 101, 51 N. E. 967, 968, 69 Am: St. Rep. 757 (1898), the court said: "A partition of land by action, the authorities maintain, creates no new title to the shares set off to the parceners in severalty. While its effect is to locate the share of each in his allotted parcel of the land, and extinguish his interest in all the others, the title by which he holds his divided share is the same as that by which his undivided interest in the estate in common was held. Tabler v. Wiseman, 2 Ohio St. 208; McBain v. McBain, 15 Ohio St. 337, 86 Am. Dec. 478. The effect upon the title is different where, in such proceeding, it is found impracticable to divide the land among the tenants in common, and there is an election by one or more of them to take the land or some parcel of it at the valuation returned by the appraisers. The grounds of the distinction are satisfactorily stated in Freeman v. Allen, 17 Ohio St. 527, and need not be repeated here. But no satisfactory reason can be assigned why partition by metes and bounds among tenants in common, by the interchange of mutual releases, where each one receives no more than his proper share of the land, should have any different effect upon the title from that of a like partition under the statute. The former is a convenient and less expensive mode of attaining the same result, and the difference is in the method only, and not in the legal consequences. The latter is not less effectual than the former in extinguishing the interest of each parcener in the parcel allotted to the others, and in transferring to each the interest of the others in his parcel. The controlling fact common to both is that each parcener receives in severalty no greater estate than he before held in common." See Conkling v. Brown, 8 Abb. Prac. (N. S., N. Y.) 345 (1870).

bel v. Martin, 50 Ohio St. 495, 525, 35 N. E. 208, 213: "The descent of real estate is controlled by the legal title, and when the legal and equitable title unite in the same person the latter becomes merged. in the former, and does not descend separately. The legal title draws to it the whole estate, and carries it in the same channel of descent as if the equitable estate had never existed." So, in Patterson v. Lamson, 45 Ohio St. 77, 12 N. E. 531, the same principle was applied. There, a father, desiring to make an advancement to his daughter on the eve of her marriage, purchased a tract of land, paying therefor $6,000, and caused the deed to be made directly to her. On her death without children, the land was held to be nonancestral, because the immediate title under which she held the land was the deed of the person from whom her father purchased it. Hence John did not mistake his duty under the trust when he conveyed the lands to Henry's wife; for it was his duty to convey them, if there was any in the premises, to the person that would have inherited them had the reconveyance been made to Henry. There is no room for a question. of good faith or fraud on the part of the owner of ancestral lands in changing their character. He has, during life, the power to dispose of them as he pleases; and it is only where he does not, and dies seised of them, without issue, that his brothers and sisters take any estate whatever in them. They simply take in the character of heirs, and not otherwise.

In Indiana it appears that the surviving wife of a deceased husband inherits one-third of his lands in fee simple, subject to the provision that, if she again intermarries, she cannot, during such marriage, alienate them; and, if she dies during such subsequent marriage, the lands go to the children of the husband, from whom the lands came. And in Nesbitt v. Trindle, 64 Ind. 183, it was held that a widow could change the heritable character of the lands descended to her from her deceased husband by a deed made without consideration to a third person, who, after she had remarried, reconveyed to her. She, as the court observed, had the power, before her remarriage, to dispose of the lands as she pleased; and whether she did so for a consideration, or not, was immaterial to the rights of her children by the former husband, from whom she derived title, for they, as heirs, had no vested estate in the lands while she remained a widow.

The second aspect of the question on the plaintiffs' right to recover arises upon the fact averred in the answer of the defendant, and found by the court to be true, that the deed made by Henry to his brother John in 1888 was made for the fraudulent purpose of hindering and delaying one Catherine Miller in the collection of any judgment she might recover against him in a contemplated bastardy proceeding, and was accepted by John to assist him in this purpose. This, we think, is an additional reason why the plaintiffs below are not entitled to recover. It is too well settled in this state to need the cita

tion of many authorities, that neither a grantor nor his heirs can have any relief in law or equity for the recovery of lands so conveyed. Trimble v. Doty, 16 Ohio St. 119; Robinson v. Robinson, 17 Ohio St. 480; Vanzant v. Davies, 6 Ohio St. 52; Barton v. Morris, 15 Ohio, 408, 431; Tremper v. Barton, 18 Ohio, 418, 422. * * Therefore, judgment reversed, and judgment for the widow, quieting her title.

HIGGINS v. HIGGINS et al.

(Supreme Court of Ohio, 1897. 57 Ohio St. 239, 48 N. E. 943.)

John Higgins verbally agreed with his son James to sell and convey to him a tract of land, in Wyandot county, containing about 200 acres, for the sum of about $6,000, to be paid by James to his father; and, upon full payment being made, the father agreed to make and deliver to the son a deed for the land. Possession was delivered to the son, and he made valuable and lasting improvements. The father signed and acknowledged a deed to James for the lands, but retained possession thereof, and the same was never delivered, and it was not intended to be delivered until the balance of the purchase money should be paid. James, the son, died intestate in 1878, still owing his father $2,200 of the purchase money. James left surviving him Josephine Higgins, his widow, and Darlton Higgins, then an infant, his only child and heir at law. He also left surviving him the defendants in error Ransom Higgins, his only brother, and Lavina Wonder, his only sister.

After the death of James Higgins, the guardian of his son Darlton brought an action in the court of common pleas against John Higgins, the father of James, to compel a conveyance of the land to Darlton, and the court found that there was still due and unpaid the sum of $2,200 of the purchase money, and "ordered and adjudged that within 10 days from the rising of this court the said John Higgins convey said real estate to the said Darlton Higgins in fee simple, subject to said dower estate, by a good and sufficient deed, and that, in default thereof, this decree operate as such conveyance, and that within 30 days from the rising of this court the said plaintiff pay the said John Higgins the said sum of $2,200, and interest thereon from the date of this decree," and awarded execution. The guardian of Darlton Higgins sold 40 acres of the land under proceedings in the probate court, and out of the proceeds of the sale paid John Higgins the remainder of the purchase money, $2,200, and interest; but John, the grandfather of Darlton, never conveyed the land by deed, but allowed the decree of the court to operate as a conveyance of the land. In the year 1890, Darlton Higgins died intestate, leaving surviving him his mother, Josephine Higgins, but no widow, child, brother, or

sister, either of the whole or half blood. His mother remained in possession of the premises, and claims that the lands came to Darlton by purchase, and ascended to and vested in her at his death, under the statute of descents; and she brought her action against the defendants in error to quiet her title.

The defendants in error, the brother and sister of James Higgins, deceased, claim that the lands came to Darlton Higgins by descent from his father, James Higgins, deceased, and that Josephine, the widow of James, has only a life estate in the lands, and that after her death the lands will belong to the defendants in error in fee, under the statute of descents. The circuit court, on appeal, found in favor of the defendants in error, and quieted the title in them, subject to the life estate of Josephine. Thereupon Josephine filed her petition in error in this court, seeking to reverse the judgment of the circuit court.

BURKET, C. J. (after stating the facts). It is urged in behalf of defendants in error that under section 4158, Rev. St., the rights of James, whether legal or equitable, descended to his son Darlton. This is true, but James had only an equity; the legal title remained in his father, John. It is also urged that John made a deed to James for the lands, and retained the same undelivered, as a security for the unpaid purchase money. This is conceded, but the fact still remains. that by retaining the undelivered deed he thereby retained the legal title to the lands in himself, and the guardian of Darlton had to pay $2,200 to obtain the legal title from John, and, upon paying that sum, the legal title passed from John, not by virtue of the undelivered deed, but by operation of the decree of the court, and thereby the legal title vested in Darlton by purchase, and not by descent.

As to John Higgins, it must be perfectly clear that he parted with the legal title to the lands by a sale thereof, and not by casting the title by descent on another; and it is equally clear that, if John parted with the legal title by sale, Darlton acquired the legal title by purchase. The legal title passing from John to Darlton could not go from John by sale, and be received by Darlton by descent. Being a sale of the legal title by John, it was a purchase by Darlton, and Darlton Higgins therefore received the legal title by purchase, and not by descent. True, he inherited from his father whatever equity the father had in the lands, but, in determining questions as to whether lands came. by purchase or descent, regard is had to the legal title alone, uninfluenced by considerations of equity. Patterson v. Lamson, 45 Ohio St. 77, 12 N. E. 531; Stembel v. Martin, 50 Ohio St. 495, 35 N. E. 208.

The controlling facts of this case are conceded by the parties, and in such cases, upon a reversal, this court may proceed, and render such judgment as the circuit court should have rendered. Minnear v. Halloway, 56 Ohio St. 148, 46 N. E. 636. The circuit court erred in

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