
    Higgins v. Higgins et al.
    
      Descent of real property — Legal title and equitable interest united, when.
    
    In determining questions as to the descent of real property, regard is had to the legal title only ; and where the legal title is acquired by purchase, and an equity in the property by inheritance, the legal title and equitable interest at once unite, and upon the death of the owner, the descent of the property will be cast as an estate which came by purchase.
    (Decided December 17, 1897.)
    Error to the Circuit Court of Wyandot county;
    John Higgins verbally agreed with his son James, to sell and convey to him a tract of land in Wyandot county, containing about two hundred acres, for the sum of about six thousand dollars, 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 two thousand, two hundred dollars, 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, andLovina 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 two thousand, two hundred dollars, of the purchase money, and “ordered and adjudged, that within ten 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 thirty days from the rising of this court, the said plaintiff pay the said John Higgins, the said sum of two thousand two hundred dollars, and interest thereon from the date of this decree,” and awarded execution.
    The guardian of Darlton Higgins, sold forty 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, $2,200.00 and interest, but John, the grandfather of Darltou, 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 Ms 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, seeMng to reverse the judgment of the circuit court.
    
      T. E. Grissell and Beer, Bennett & Monnette, for plaintiff in error.
    If Darlton Higgins acquired title to.the real estate in question bv descent, then the decree of the circuit court should be affirmed. If he acquired his title by purchase, the decree of the circuit court should be reversed and this court should render a decree for the plaintiff quieting her in her title.
    Both plaintiff and the defendants claim title by descent from Darlton Higgins, and both concede that he died seized in fee simple, subject to the dower estate of the plaintiff.
    The plaintiff claims that the title of Darlton Higgins came to him by purchase. The defendants claim that it came to him by descent.
    It could not come to him both by descent and by purchase. Persons claiming- as heirs to an estate cannot trace their title to the same estate partly under section 4158, Revised Statutes, and partly under section 4159, Revised Statutes. Brower v. Hunt, 18 Ohio St., 211.
    If Darlton Higgins acquired his title, or any part of his title, from John Higgins by deed, or by a decree for a deed, and for a consideration'to be paid in money, then, for the purposes of this action, the title of Darlton is one by purchase. Patterson v. Lamson 45 Ohio St., 90; Foster’s Appeal, 74 Pa. St., 391; Armington v. Armington, 28 Ind., 74.
    It is plain that the interest of James in the land at the time of his death was not- an estate in fee simple. The legal title was not in him, and he was not entitled to it for the reason that he had not paid the purchase price for it.
    The object of the suit in the court of common pleas, on the part of Darlton Higgins, was to obtain a title and estate by purchase — not from James, his ancestor, but from John Higgins, in whom the same was vested.
    James died having a limited interest in the land, but the fee was in John.
    But the legal title, the fee simple, which had never passed from John, which remained in him after the death of James, and which he was under no-obligation to convey to James during his lifetime, nor to his heirs after his death, passed to and became vested in Darlton by the decree of the court of common pleas upon the payment by him of the purchase money.
    This estate acquired by Darlton from John came not by descent, devise or deed of- gift, and when it became vested in him, the limited interest in the land, which passed to him by inheritance at the death of his father, was drowned or merged in it, upon the principle, that “omne majus oontinet in se minus.” 1 Cruise on Real Property, 19.
    Where legal and equitable estates meet in the same person, the equitable merge in the legal. 
      Wade v. Paget, 1 Bro. Ch., 364; Goodright Lessee v. Wells, Doug., 771; Selby v. Alston, 3 Ves., 339; Nicholson v. Halsey et al., 1 Johns. Ch., 417; Strembel v. Martin et al., 50 Ohio St., 495; James v. Morey et al., 2 Cow., 246; 4 Kent’s Com., 101-3; 2 Pomeroy’s Eq. Jur., section 787; Welsh v. Phillips, 54 Ala., 309; Walker’s American Law, 397.
    An ancestor is one from whom the estate was inherited by right of blood. Lathrop v. Young, 25 Ohio St., 464; Shepherd v. Taylor, 3 Atl., 382.
    The title of Darlton Higgins came to him directly from John Higgins, a living vendor. Freeman v. Allen, 17 Ohio St., 529 Blackstone. 2 Com. 201. Wendell’s Edition.
    
      A. F. P. & P. A. Blackford, for defendants in error.
    Darlton Higgins, by his guardian, claimed title and right to this land by descent from his father, James Higgins, deceased. He alleged the contract by his father for the purchase and payment of the consideration, except the balance named and that the deed had been executed, but not delivered, John Higgins, the father of James, retaining the same as security for this unpaid balance.
    The right of Josephine Higgins, mother of Darlfcon, to dower was conceded
    Under section 4158, Revised Statutes, the right of James to the lands, legal or equitable, descended to his son, Darlton. The unpaid purchase money became a charge against the personal estate of James. But, if necessary, under section 6166, Revised Statutes, his equitable interest might be sold to pay debts of the estate. Revised Statutes, 6090, 6091; Giauque Decedent’s Estate, 526.
    
      At the decease of James, his right and title passed immediately by descent to his heir, Darlton.
    If the administrator of James had sold 40 acres of this land to pay the purchase money debt, his son, Darlton, would have held the 160 acres remaining by descent unincumbered.
    The $2,000 was never a debt or obligation of Darlton. If the deed to James had been delivered, taking a mortgage for the $2,000, at his decease the land would have descended to his heir, subject to the incumbrance. But, if the legal title was retained as a security for the purchase money the equitable title in the same manner must go to the heir with dower and rights of creditors.
    For more than a year after the decease of James Higgins, his son, Darlton, and Josephine, his widow, held these lands as widow and heir. By removing an incumbrance by a sale of part of it with his other money the title would not be changed from one by descent to purchase.' As it came to him it must remain.
    The forty acres sold came to Darlton by descent subject to the lien for purchase money. This was sold and the proceeds applied in payment of the balance due.' He paid no part of the purchase money. He never purchased of John Higgins, or took any title from him. He alleges his father’s contract and right, alleges his decease intestate, leaving him the only heir and as such succeeding to his father’s rights. So the decree found and adjudged. Patterson v. Lamson, 45 Ohio St., 90.
   Burket, C. J.

It is urged in behalf of defendants in error, that under section 4158, Revised Statutes, the rights of James, whether legal or equitable, descended to his son, Darlton. This is true, but James Nad 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 two thousand • two hundred dollars, 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 easting the title by descent on another; and it is equally clear, that if John parted with the legal title by sale, that 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 Darltou 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; Stembel v. Martin, 50 Ohio St., 495.

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. Holloway, 56 Ohio St., 148.

The circuit court erred in applying the law to the conceded facts and its judgment is therefore reversed, and a decree entered in favor of the plaintiff in error, quieting her title to said lands in fee simple.

Judgment accordingly.  