
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    LOUIS DUHME, Administrator, et al., v. CHRISTINA MEHNER, Administratrix, et al.
    
    
      Action to have receipt fraudulently obtained set aside and for money — Action appealable—
    (1) . An action against an administratrix, graying that the court annul, set aside and cancel certain receipts alleged to have been fraudulently obtained, and that she may be directed to pay of the trust funds, in her hands, to plaintiff the amount alleged to be due plaintiff, is not an action for money only, and is appealable. v
    
      Same — Failure to allege balance found due—
    (2) . Where the petition in such action fails to aver any settlement of the estate by the administratrix and a balance found due the plaintiff, no money can be recovered in such action.
    
      Action quia timet — When proper—
    (3) . An action quia timet may be brought in equity, requiring the delivering up and cancellation of instruments which are voidable or which are in reality void, although apparently valid, on the ground that they might be vexatiously or injuriously used when the evidence to impeach them may be lost or diminished; out where the illegality of the instrument appears on its face, equity will not interfere.
    Appeal from the Court of Common Pleas of Hamilton county.
    
      
      For another decision in this case on another point see 10C.C., 107.
    
   SMITH, J.

The question submitted to us is whether the appeal taken by the plaintiffs from the judgment of the court of common pleas should be dismissed for the reason assigned in the motion, viz, that the action is one in which no appeal can be taken — that it is one in which the relief sought is a judgment for money only, and in which either of the parties were entitled to a trial by jury in the court of common pleas.

The petition, as filed, sought relief as against Christina Mehner as an individual, and other relief against her as administratrix of the estate of her deceased husband, Louis Mehner. It was brought by Duhme as the administrator of the estate of Florence L. Thompson, deceased, who was a daughter, heir at law and one of the distributees of the estate of Louis Mehner, deceased, and by Georgia M. Thompson, a child and heir at law of said Florence, and by Albert W. Mehner, a child, heir at law and distributee of the estate of said Louis Mehner.

By the petition it was averred that after the death of Louis Mehner, who was the owner of a large amount of real estate described therein, Florence L. Thompson, then in full life and a married woman, was induced by the fraudulent conduct and false and fraudulent representations of said Christina Mehner to convey to her the whole of her interest in the real estate, inherited by her from her father, without any consideration whatever. It is averred that said Christina Mehner still holds the same, and the petition prays that such deeds, so fraudulenly obtained, may be set aBide and held for naught. Several persons who claim to have • liens thereon, given by Mrs. Mehner, are made parties.

There can be no question whatever that by these averments a cause of action was set forth which would entitle any of the parties affected thereby to appeal from a judgment or decree rendered thereon by the court of common pleas. It appears, however, from the transcript of the journal entries of that court, that in so far as this cause of action was concerned, it was heard by the court separately from the other cause of action set out in the petition, and a decree was entered by the court December 31, 1892, adjudicating also the rights of the parties in so far as the real estate was concerned, and no appeal was taken therefrom.

The other claim or cause of action.set up in the petition was. substantialy this: That on the death of Louis Mehner. his wife was appointed administratrix of his estate in this county. That she took possession of all of his personal property, and thereby became, and still is, the trustee of an express trust of which the plaintiffs are the beneficiaries. That there were no debts of said estate. That by divers fraudulent practices and false and fraudulent representations, she procured the said Florence L. Thompson, then a young married woman, wholly iguorant of business affairs, and acting without other advice, and by reason of the dominion exercised over her by her mother, to sign a receipt to the said Christina, as administratrix, for her distributive share of such estate, without any consideration therefor. There are also somewhat similar statements as to the obtaining of a receipt from the guardian of Albert W. Mehner, and it is averred that said receipts are false and fraudulent, and that none of the plaintiffs have ever received any money or property from said estate. It is further averred that said administratrix, as trustee of plaintiffs, still has in her hands as trustee for the administrator of the estate of Florence L. Thompson, deceased,821,900,and a like sum as trustee for Albert \V. Mehner, with interest from August 1, 1877. (There are these allegations as to another of said distributees, not necessary to be now stated.)

The prayer of the petition is on this point, substantially this: that the court by its decree annul, set aside and cancel said re•csipts so fraudulently obtained, and that said administratrix be directed to pay, of the trust funds stihl in her hands, to the said parties respectively, the said amounts so alleged to be due them, with interest from August 1, 1877.

It will be seen from the foregoing abstract that there is no averment in the petition that said administratrix ever filed her account as such for settlement, or that her account was ever settled in any way. If such averment had been made, we incline to the-opinion, though we have not examined the law on the subject, that an action would lie to impeach a settlement, where a receipt thus fraudulently obtained,and had been used to show a payment of a distributive share to one entitled thereto, when such payment had as a matter of fact, not been made, and this clearly would be an equitable case, and one in which an appeal would lie. But as no-such allegation is made as to any settlement by the administratrix, the question remains whether, under the law as it now stands in Ohio, the allegations of the petition made such an equitable case as gives a party a right to appeal.

It is clear, we think, that under the rules and practice of courts-, of equity as heretofore administered in this state as elsewhere,. ■ they would interfere to require the delivering up and the cancellation of “instruments which are voidable, or instruments which are in reality void and yet apparently valid. This is done upon the principle, as it is technically called, quia timet, that is, for fear that such instruments may be vexatiously or injuriously used, when the evidence to impeach them may be lost or diminished, or for fear that they may throw a cloud or suspicion over the plaintiff’s title or interests. * * * But where the illegality of the instrument appears on the face of it, so that it readily can admit of no doubt, equity will not interfere; because in that case the ground for interference does not exist.” Smith’s Manual of Equity, 396-7; and it is clear that the doctrine applies to cases where such instruments have been obtained by fraud, as is alleged in this case.

Follett & Kelley, Francis Lampe and Edmund K. Stallo, for the motion.

J. J. Gidden, contra.

But two reasons are alleged why the appeal will not lie in this cause, as we understand counsel. The first is that in this case the primary and principal relief sought is a judgment for money only; and second, that an equitable ground for interference by the court for the cancellation of the receipts is not presented; t'hat it is wholly unnecessary to order the cancellation of the receipts, for tbe reason that their invalidity may be shown in any proceeding at law in which they might be reiied upon by the administratrix.

As to these objections we may say briefly, that in our view, the action is not one for the recovery of money only, but the equitable relief of cancellation of the receipts is the primary, and indeed, on the allegations of tbe petition, the only relief which could be granted. Evidently, if there has been no settlement of the estate by the administratrix, and a balance found in her hands coming to the paintiffs as distributees, they would have no right to recover in an action of this kind anything as their distributive share of the estate. An action might be brought upon the bond given by her, for a breach of its conditions, but, as we understand the law, until something is found due by the court to distributees on a settlement of the account, they cannot recover for any amount as due to them as such, in this kind of an action.

But here there are no allegations in the petition of any settlement. For all that appears from the petition the estate has not been settled, and the receipts given have never been used by the administratrix, but may yet be used by her. Why should not the plaintiff by this proceeding, quia timet, seek the cancellation of those papers that she may not use them? It seems to us that he pleading is not well drawn to meet the real case. We suppose from what has been said in argument that a settlement was in fact made, and those receipts used to balance the amount due plaintiff, and threfore, in our judgment, the better plan would be to attack the settlement for fraud, and not proceed for the cancellation of the receipts; and pray for a decree for the payment of money by the administratrix, which gives some color to the idea that the relief sought is a judgment for money.

But in view of ibe whole case shown by the petition, we think it presented an equitable case for the cancellation of the receipts. The motion to dismiss will be overruled.  