
    Woodworth v. Banning et al.
    
      (Decided May 3, 1932.)
    
      Messrs. Davies, Hoover S Beall, for plaintiff in error.
    
      Mr. Wm. J. Rielly, for defendant in error Leland Q-. Banning.
   Ross, P. J.

This matter is presented to this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the defendant Leland G. Banning upon the opening statements of counsel. No bill of exceptions is presented.

Anna Moore, according to the pleadings, was prior to her death in 1912 indebted to Thomas Paxton, Sr., who died in 1922. Certain real estate belonging to her was in 1906 offered for sale for delinquent taxes. Thomas Paxton made an arrangement with Anna Moore by which he took title to this real estate, with the understanding that he would hold title subject to conveyance to Anna Moore upon payment to him of the amount due him, including the amount paid by him for the delinquent taxes. Thereafter, Anna Moore sought a purchaser for this property and explained the whole transaction to Leland G-. Banning, to whom she endeavored to sell the real estate. Banning, fully aware of all the facts, secured a deed for the property from Thomas Paxton, and now refuses to convey the same to the heir of Anna Moore, though she offers to pay him whatever claim was due Paxton.

The plaintiff in error, Mary A. Woodworth, is the heir at law, and by waiver of other heirs, is solely entitled to the legal title of the real estate involved,

The case was formerly passed upon by the court of common pleas, upon an amended petition, which then included the Paxton heirs as defendants. A joint demurrer was filed by the Paxton heirs and Banning, and this was sustained by the court of common pleas. The case was then taken on error to this court, which reversed the judgment of the court of common pleas, and remanded the case for further proceedings, after which the Paxton heirs were dismissed, and an entry of satisfaction was placed of record as to them, December 6, 1929.

It was the contention of the demurring defendants, in the prior hearing, that the amended petition attempted to set up a resulting trust against Paxton, and alleged fraud on his part, and that any cause of action was barred by the four-year statute of limitations. This court in its opinion in Woodworth v. Banning et al., Exrs., reported in 29 Ohio App., 81, 163 N. E., 60, laid down the law of the case and it is conclusive upon all questions now presented by this proceeding. We quote from the opinion at page 87 [163 N. E., 61]: “So that while the charge in the amended petition, that the conveyance from Paxton to Banning was with knowledge on the part of both Paxton and Banning of Woodworth’s interest in the property, and that Paxton held the title as security or as an equitable mortgage, in terms charges fraud, it in fact charges that Banning holds only the title that Paxton held, that of mortgagee.”

The fact that the plaintiff in error may have settled with Paxton after the transfer to Banning can in no way discharge her from responsibility to account to Banning for the claim he purchased from Paxton, and it was only the interest created by the equitable mortgage that Banning could purchase from Paxton. This claim in full he is entitled to have paid, but when payment of it is tendered he must convey the property to the plaintiff in error, just as Paxton was bound to do under his agreement with Anna Moore.

Naturally the matter having been presented to this court in each case upon error to an action of the trial court upon a demurrer, the cases of plaintiff in error must be predicated upon substantiation of the facts alleged in her amended and supplemental petition by the amount of proof required by law in such cases.

In the consideration of the case in its present form the facts alleged in the pleadings of plaintiff in error must be taken as true.

We conclude, therefore, that the demurrer to the amended and supplemental petition should have been overruled. To hold otherwise would be a subversion of justice, according to the allegations of the pleadings of the plaintiff in error. Banning knew all of the facts and circumstances surrounding the original transaction between Anna Moore and Thomas Paxton. He took the title to the property with full knowledge of the equities existing in favor of Anna Moore. While he will be protected to the full extent of Paxton’s claim against Anna Moore, he is protected only to such extent, and upon tender of the amount due Paxton, must convey the property to such person as lawfully holds title under her.

The judgment of the court of common pleas of Hamilton county is reversed, and the cause is remanded to that court for further proceedings according to law.

Judgment reversed and cause remanded.

Hamilton and Cushing, JJ., concur.  