
    Lee et al. v. Fike.
    (Decided February 17, 1928.)
    
      Mr. D. B. Wolcott5 for plaintiffs.
    
      Messrs. Weiser & Weimer and Mr. Grant Gos-horn, for defendant.
   Washburn, P. J.

This cause was tried in this court on appeal from the court of common pleas of Medina county, and was submitted upon an agreed statement of facts, including the deeds hereinafter mentioned, from which, it appears that Duncan Williams was the owner of a tract of land of about 100 acres, which will be designated as tract A; and that there was another tract of land containing about 149 acres, of which tract Duncan Williams was the owner of 78 acres and owner of an undivided half of the remaining 71 acres, the other undivided half of said 71 acres being owned by his son Guy Williams, which tract of land will be referred to as tract B.

Duncan Williams had one other son, named Park Williams.

Guy Williams 'died leaving his wife, Jessie A. Williams, and two children, who are now Mary J. Lee and Asenath Whitmore, the plaintiffs in this action. After the death of Guy Williams, Duncan Williams, the father, died intestate, leaving surviving him said son Park Williams and said two grandchildren, and owning said tract A, said 78 acres in tract B, and the. undivided half of 71 acres in tract B.

A short time after the death of Duncan Williams, his said two grandchildren, the plaintiffs, and their mother, Jessie A. Williams, by quitclaim deed conveyed their interest in tract A to Park Williams, and at the same time Park Williams and his wife, by quitclaim deed, conveyed their interest in tract B to plaintiffs, Jessie A. Williams joining in said deed and thereby conveying to plaintiffs her dower interest in the undivided one-half of the 71 acres in tract B, which her husband, Guy Williams, had owned in common with his father, Duncan Williams.

Only the title to tract A is involved in this suit, and in the deed of that tract it is recited:

“The interest hereby intended to be conveyed in and to the above-described parcel of land is such interest as said grantors have in and to said lands as heirs at law of the estate of Duncan Williams, late of Homer Township, county of Medina,, Ohio, deceased.”

And in both deeds — that of tract A and that of tract B — the grantors are named as “heirs at law of the estate of Duncan Williams, deceased.”

In each of said deeds the consideration is declared to be “for divers good causes and considerations thereunto moving, especially for the sum of $5,000, ’ ’ and it is agreed that one witness, if her testimony were competent, would testify that the two deeds were executed contemporaneously; that no money passed between the parties; and that both tracts were substantially of equal value. The defendant objected to such testimony solely on the ground that such evidence was incompetent to qualify the recitals of consideration set forth in the deeds, but cannot disprove such evidence.

Park Williams died intestate, without issue surviving him, but leaving Ella Williams, his widow, surviving him, and owning tract A. ■ Ella Williams was afterwards intermarried with the defendant, Emory Eike. At her death she devised all of her real estate, by will, to the defendant, Emory Pike, who is her surviving husband. Plaintiffs Mary J. Lee and Asenath Whitmore brought this action against Emory Pike, claiming that said tract A came to Park Williams as ancestral property, and, subject to the life use of his widow, descended to them as the heirs of Park Williams, who was their uncle, and asking that their title to tract A be quieted as against the defendant, Emory Pike, who is the surviving husband of the former wife of Park Williams.

It is conceded that one-half of tract A is ancestral property, and, by virtue of Section 8573, belongs to the plaintiffs, and it is also conceded that if Park Williams acquired title to the other one-half of tract A by descent, then the whole of tract A belongs to the plaintiffs; but that, if Park Williams acquired the title to one-half of tract A by purchase, then that one-half belongs to the defendant, Emory Fike.

The solution of the problem presented by this case depends upon whether the one-half of tract A, which was admittedly ancestral property, was changed to nonancestral property by the quitclaim deed which the plaintiffs gave to Park Williams, and which on its face purports to be given for “divers good causes and considerations,” and especially for a consideration of $5,000; and that solution depends in turn upon whether or not the aforementioned evidence was. competent to'show that said deed was not a deed of purchase, but that the transaction of which said deed was a part was an amicable partition of an estate theretofore held in common by the parties to said transaction, and for which there was no consideration other than the mutual releases of the parties to such transaction.

The law applicable to this situation is stated by the Supreme Court in Carter v. Day, 59 Ohio St., 96, 51 N. E., 967, 69 Am. St. Rep., 757:

“When partition is made by mutual releases, they should be read and construed together, in the light of the circumstances attending their execution; and it is competent to show that their only purpose was to accomplish the partition, and no other consideration passed between the parties, though a pecuniary consideration be expressed in the deeds.”

As we read the cases, the principle announced in the foregoing case is approved in Groves v. Groves, 65 Ohio St., 442, 62 N. E., 1044; in Shehy v. Cunningham, 81 Ohio St., 289, 90 N. E., 805, 25 L. R. A. (N. S.), 1194; and in Huseman v. Fingermeyer, 106 Ohio St., 113, 139 N. E., 862.

It should be borne in mind that the case at bar does not involve the question of the admissibility of evidence to show that a deed of conveyance expressing a valuable consideration is in fact a gift, nor are we here concerned with' the deed of an ancestor to an heir,- as to which it has been repeatedly decided that for the purpose of descent and distribution, when such deed contains a recital of a valuable consideration received from the grantee, it is to be construed as a deed of purchase, and the character of the consideration as expressed in the deed cannot be changed by parol evidence so as to change the line of descent of the property conveyed; and likewise we are not concerned with the right of a testator to impart to a transfer of title by will the quality of a purchase or a devise, nor with the admissibility of testimony in reference to the intention of the testator.

We consider the rule to be settled that, while for some purposes a consideration named in a deed may be open to explanation by parol proof, such evidence is, as a general rule, incompetent where its effect is to vary the operative words of the deed. Patterson v. Lamson, 45 Ohio St., 77, 12 N. E., 531; Shehy v. Cunningham, 81 Ohio St., 289, 90 N. E., 805, 25 L. R. A. (N. S.), 1194; Groves v. Groves, 65 Ohio St., 442, 62 N. E., 1044; Thiessen v. Moore, 105 Ohio St., 401, 137 N. E., 906; Gardner v. Kern, 115 Ohio St., 575, 155 N. E., 134.

But we consider it to be just as well established in Ohio that even if deeds between tenants in common, conveying ancestral property, purport to be made upon a money consideration, it may be shown by parol evidence that the transaction was in fact an amicable partition, that no money consideration passed, and that there was no consideration other than the mutual releases of the parties.

We are of the opinion that the evidence in the case at bar, showing that in the transaction in question there was no consideration other than the mutual, releases of the parties, was competent, and that the fact that the description of the premises in the deed of tract B included the undivided half of 71 acres formerly owned by Guy Williams is not important; the circumstances clearly indicate the reason therefor, and in no sense did it constitute a consideration in the transaction.

We find that the evidence, together with all the circumstances, establishes the fact to our satisfaction that the transaction by which Park Williams acquired a one-half interest of tract A was not a bargain and sale, but an amicable partition, by which the title which he acquired by descent from an ancestor was not changed, and that his title in the one-half of tract A remained the same as that by which his undivided interest in the land was held.

“The line of descent is not broken by partition of an estate theretofore held in common whether the partition be made in a legal proceeding, or by the interchange of mutual releases. In either case the title of each parcener in the share set off to him in severalty remains the same as that by which his undivided interest in the land was held.” Carter v. Day, supra.

It follows that the decree should be the same as in the court below, in favor of the plaintiffs.

Decree for plaintiffs.

Funk and Pardee, JJ., concur.  