
    Brown v. Whaley et al.
    
      Deed, of real estate front parent to child — Is not deed by gift but■ by purchase, when.
    
    A deed of real estate from a father and mother to their daughter, “ in consideration of our love and affection for our daughter, and in consideration of the dutiful obedience and faithful services to us of our daughter and in further consideration of one dollar to us in hand paid by our said daughter, ” is not a deed of gift, and the title acquired under such deed came to the daughter not by deed of gift but by purchase.
    (Decided January 26, 1898.)
    Error to the Circuit Court oí Wyandot county.
    On the 21st day of November, 1860, John Carey and wife conveyed to their daughter, Cinderella, then of the age of thirty-four years, unmarried and residing at home with her parents, about five hundred acres of land situate in Wyandot county, near Carey, where the parents resided.
    Afterwards Cinderella became the wife of Edwin Brown, plaintiff in error, and years afterward died intestate leaving the plaintiff in error surviving her, and also leaving one brother and two sisters surviving her, but leaving no children or their legal representatives.
    John Carey died March 17, 1875, and thereafter in 1895, his children divided among themselves, the lands of which he was still seized at his death, and made deeds of quitclaim to each other, .some taking more and some less than the share of each, and the differences were settled in money as agreed upon.
    Excepting the description of the lands, the acknowledgment, signatures, etc., the deed from John Carey and wife to Cinderella, is as follows:
    
      “Know all men by these presents that we, John Carey and Dorcas Carey, wife of said John Carey, of the county of Wyandot, in the state of Ohio, in consideration of our love and affection for our daughter, Cinderella Carey, of the county of Wyandot, in the state of Ohio, and in consideration of the dutiful obedience and faithful services to us of our said daughter Cinderella, and in further consideration of one dollar to us in hand paid by our said daughter, CinderellaCarey, have bargained and sold, and do hereby grant, bargain, .sell and convey unto the said Cinderella Carey, her heirs and assigns forever, the following premises situate in Crawford township, Wyandot county, and state of Ohio, and described as follows, to-wit: * * * To have and to hold said premises 'with the appurtenances thereof, unto the said Cinderella Carey, her heirs and assigns forever. And the said John Carey, for himself and heirs, doth hereby covenant with the said Cinderella Carey, her heirs and assigns, that he is lawfully seized of the premises aforesaid. That the premises are free and clear from all incumbrances whatsoever, and that he will forever warrant and defend the same with the appurtenances thereof unto the said Cinderella Carey, her heirs and assigns, against the lawful claims of all persons whomsoever.”
    After the death of Cinderella, her husband, the plaintiff in error, continued in possession of all the lands of which she died seized, and claimed to hold the same in fee, under the statute of descents. Her brothers and sisters claimed that the plaintiff in error had only a life estate in the lands, and that after his death, they wonld be entitled to the lands in fee under the statute.
    
      Thereupon, the plaintiff in error filed his petition in the court of common pleas against the brother and sisters of the wife, seeking to quiet his title to all the lands.
    Upon trial on appeal in the circuit court, it was held that the plaintiff had only a life estate in the lands conveyed by the deed of John Carey and wife, to Cinderella, and that the brother and sisters had the fee after the expiration of the life estate, and judgment was entered accordingly. It was further held, that the plaintiff had the full title in fee to all the lands described in the quitclaim deed to his wife, and that the brother and sisters had no interest therein, and a separate judgment as to said lands was entered accordingly.
    The plaintiff filed a motion for a new trial, which was overruled and exceptions taken. A bill of exceptions was taken containing all the evidence, including an agreed statement of facts as to the deeds and conveyances above mentioned.
    Plaintiff in error filed his petition in error in this court, seeking- to reverse the judgment as to the lands described in the deed from John Carey and wife, to Cinderella, and as to which the court held that he had only a life estate.
    No cross-petition in error has been filed to reverse the judgment as to the lands described in the quitclaim deed, and as to which the court held the fee to be in Mr. Brown, and this last judgment is not in controversy in this case.
    
      Thomas Beer and T. E. Orisell, for plaintiff in error.
    If the deed from John Carey to Cinderella is a deed of purchase, then the estate passes under section 4159 to the plaintiff.
    
      We claim it to be a deed of purchase. It recites a valuable consideration.
    Services, faithful services, constitute a valuable consideration. The grantee could pay labor for land. Because she was a daughter it is not to be inferred that her services were gratuitous, or that she was to be, or was, compensated by being permitted to live in her father’s family. There is no evidence that he boarded, clothed or educated her. We are not bound to prove an express contract to compensate her. She rendered the services and her father executed the deed in consideration of the services. The recital of the deed raises the presumption that the services were rendered upon request. Where the act which is the consideration of a promise is founded upon a proceeding request it is sufficient. Doty v. Wilson, 14 Johns, 379; Hicks v. Burhans, 10 Johns, 244; 2 Pothier Ob., 19; Doran’s Ext. v. McQonologue, 150 Pa. 98 ; Worth v. Case, 42 N. Y., 362; Baker v. Pycatt, 6 West. Rep., 283.
    Cinderella Carey worked for her father for twelve years after arriving at full age. Her services were valuable as shown by the testimony. She served faithfully, so the deed says, and recognizing his obligation to compensate her therefor John Carey conveyed her the land described in his deed. 2 Black. Com., 444; Chitty on Contracts, 28.
    In addition to “faithful services to us” the deed recites the “further consideration of one dollar to us in hand paid by our said daughter Cinderella.” If the deed is a deed of gift, as claimed by the defendant in error, the foregoing recitals must be held to be surplusage.
    
      The rule is just to the contrary. Thornton on Gifts, 5; Worth v. Case, 42 N. Y., 362.
    It makes no difference that love and affection is named as part of the consideration. The naming of an additional consideration which is valuable, renders the deed one of bargain and sale. Spear v. Griffiths, 86 111., 552; Thornton on Gifts, 6.
    The recital that the grant is made upon the further consideration of one dollar to as in hand paid makes the deed one of bargain and sale, one dollar is a valuable consideration. Chitty on Contracts, 29; 10 A. & E., 320; Knoble v. Lindsay, 5 Ohio, 471; Withers v. Ewing, 40 Ohio St., 408; Judy v. Linderman, 48 Ohio St., 573; Steele v. Worthington, 2 Ohio, 182; Davenport v. Mason, 15 Mass., 85, Mason v. Mouldon, 58 Ind., 1; Chitty on Contracts, 11, Am. Ed., page 29; 2 Id., 1049; Wood v. Chapin, 13 N. Y., 517; 2 Devlin on Deeds, section 810; Boolffwell v. Brown, 54 N. Y., 210; Trafton v. Hawes, 102 Mass., 541; Lake v. Gray, 35 Iowa, 461.
    Where the deed is taken in good faith, the amount of the consideration paid is immaterial. Devlin on Deeds, section 814.
    A pecuniary consideration, however small, will support a deed of bargain and sale. Clark on Contracts, 161; Lawrence v. Me A Imerat, 2 How., 426; Fergoson’s Appeal, 117 Pa., St., 426; Bell v. Scammon, 15 N. H., 381; s. e. 41 Am. Dec., 706; 31 Am. St., 81, note.
    Where an attack is made upon an executed conveyance the fact that the consideration is grossly inadequate can be regarded only as evidence of fraud and of itself is not sufficient to set it aside. Davidson v. Little, 22 Pa. St., 24; s. c. 60, Am. Dec., 81; Lynch v. Livingston, 6 N. Y., 434; Webster v. Van Stra/wbw-g, 46 Barb.
    
      If a consideration is expressed, no proof of its actual payment need be given, and it is sufficient that the amount be merely nominal. Houston v. Blackman, 41 Am., 756; Belden v. Layman, 8 Conn., 304; Meeker v. Meeke/r, 16 Conn., 383 ; Or out v. Townsend, 2 Hill, 554; Goodspeed v. Fuller, 46 Me., 141; Souderbye v. Arden, 1 J. Ch., 240; Graves v. Graves, 29 N. H., 129; Worthingtons. Bullitt, 6 Md., 189; Newton v. Comers, 26 Ohio St., 619.
    The grantor was at liberty to determine for himself the value of the services. He says he conveyed the land in consideration of the services and one dollar. He was free to do as he pleased with his own, and he was the sole judge as to the benefit to be derived from his bargain. Winans v. Peebles, et al., 31 Barb., 371; 9 Ind., 323; 62 Mo., 267; 25 Ark., 225; 35 Iowa, 461; 19 Ind., 271; 13 Cal., 9; Wolford v. Powers, 85 Ind., 294; S. C., 44 Am. Rep., 16; Farl v. Peck, 64 N. Y., 596; 31 Am. Rep., 428.
    Courts of equity as well as courts of law act upon the ground that every person who is not from his peculiar condition or circumstances under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses, and whether his bargains are wise and discreet or profitable or unprofitable, or otherwise, are considerations not for courts of justice, but for the party himself to deliberate upon. Story on Eq. Jur., section 244; 2 Bou. Inst., 390, section 2014; Scott v. Scott, 105 Ind., 586; Kimball v. Fenner, 12 N. H., 248; Douglas v. Scott, 5 Ohio, 194; Clark on Contracts, 80; Gully v. Grubbs, 1 J. J. Marsh, 387; Miller v. Egerton, 38 Kan., 36; Morses. Shat-tuck, 4 N. H., 229; Hatch s. Bates, 54 Me., 136; 
      Gardner v. Lighfort, 71 Iowa, 580; Bigelow on Estoppel, 479.
    If a consideration of value be named, the consideration cannot be contradicted. Beach v. Cook, 28 N. Y., 537; 6 N. Y., 342; Touch., 219 ; 1 Co., 24; 40 Barb., 146; 46 Barb., 211; 13 N. Y., 509; 3 John’s, 484; 10 Id., 456; 16 Id., 47; Pom. Eq. Jur., section 1036; Moore v. Jordan, 7 Am. St., 6402.
    The recital in a deed that a pecuniary consideration has been paid so far as the legal effect of the conveyance as a deed of bargain and sale is concerned, is conclusive. Boclawell v. Brown, 54 N. Y., 210; Jones v. Dougherty, 10 Ga., 273; Trafton v. Hawes, 102 Mass., 541; Hartshorn v. Day, 19 How., 211.
    Evidence dehors the deed cannot be introduced to contradict the deed or to change its legal effect in the creation or modification of the estate. Hartopp v. Hartopp, 17 Ves., 192; Section 26, Greenleaf Ev., note; Burr age v. Beardsley, 16 Ohio, 442; Bteele v. Worthington, 2 Ohio, 182; 2 Phip. Ev., 353, note; Id., 369; Id., 228, page 384; 4 Phip. Ev., note 289, page 583; Id., 309, page 619; 2 Hilliard’s Real Prop., 310; 1 Rice on Ev., section 176; 17 Am. & Eng. Ency., 439; 79 Pa. St., 43.6; 1 Greenleaf on Ev., 285; 48 Pa. St., 491; 31 Cal., 472; 17 Am. & Eng. Ency., 439; 1 Pars. Cont., 355-356; Patterson v. Damson, 45 Ohio St., 77.
    Title by descent vests in a man by the single operation of law. It passes from an ancestor at his death to his heir-at-law. It is cast upon the heir immediately upon the death of the ancestor. 2 Black. Com., 201; 4 Kent’s Com., 373.
    Title by purchase vests in a man by the act or agreement of himself and his vendor. 2 Black. Com., 201; 4 Kent’s Com., 373; 17 Ohio St., 529.
    
      Cinderella acquired her title by agreement of herself and the defendants. Her title does not fall within any definition of title by descent, while it does fall exactly within the definition of title by purchase. The property was ancestral while the title was in the defendants. It did not descend or pass from them to Cinderella by operation of law. It did pass from them to Cinderella by the act of the parties. Hershiser v. Florence, 39 Ohio St., 516; Farmers Banh v. Wallace, 45 Ohio St., 152.
    The deeds were not mutual releases. The defendant shows Cinderella paid. She bought. She sold. It is no case of amicable partition, or any other partition.
    
      John D. Sears and G. IF. Kinney, for defendants in error.
    The circuit court held this to be a deed of gift, and in this holding we contend that they were clearly right. Under the circumstances of this case, the property therefore passed to this plaintiff in error, husband of Cinderella, during his natural life, and after his death would vest in the brother and sisters of Cinderella or their legal representatives. Revised Statutes, section 4158; Brewster v. Benedict, 14 Ohio, 385.
    Plaintiff in error' contends that “faithful services” and “$1.00” state a valuable consideration, and show that this deed was not one of gift. “Faithful services” when used in a deed from parent to child, do not import a valuable consideration. The law implies no obligation to pay for the services of a, child rendered his or her parents, while living with them. Where there is no agreement to pay for such services there is no obligation to pay. Lovett v. Price, Wright’s Reports,, page 89; Willis v. Dean, Wright’s Reports, page 134; Wait, on Fraudulent Conveyances, section 215; Ellis v. Casey, 17 Am. State Reports, 125; Pollock v. Pollock, 2 C. C., 143; 1 Giro. Dec., 411; Ilcmthorne v. McClure, 4 C. C., 11; 2 Circ. Dec., 390; Zimmerman v. Zimmerman, 22 Law Bulletin, 218.
    These words when used in a deed of this character, import nothing more than an acknowledgment on the part of the parent that the child has faithfully performed the duties imposed, upon him or her by the relationship. If it had been intended that this should not be a deed of gift, the “love and affection” would probably have been left out, and “faithful services” would have been changed to “valuable services.”
    The whole statement of the consideration in this deed shows clearly that it was understood by both the grantors and the grantee to be a purely voluntary gift. “One dollar” mentioned as consideration in a deed conveying hundreds of acres of land does not import a valuable consideration, especially when used in a deed from parent to child, and the deed recites “love and affection.” It is usual in deeds of gift to mention $1.00 as part of the consideration.- Indeed, it was formerly considered that it was necessary to state some valuable consideration to sustain a deed of gift. Walker’s American Law, 6th Ed., page 405; Thompson v. Thompson, 17 Ohio St., 650; Holmes v. Sullivan, 14 Weekly Law Bulletin, 167.
    Where a deed states a valuable consideration, parol testimony is admissible to show other valuable consideration, but where the consideration stated in the deed is simply a good consideration as distinguished from a valuable consideration, testimony will not be admitted to show a valuable consideration. Burrage's Lessee v. Beardsley, 16 Ohio, 438; Vail et al. v. MeMillen, 17 Ohio St., 617.
    It seems to us clear that this deed recites a good consideration only as distinguished from a valuable consideration, and that under the rules above stated no testimony is admissible to show a valuable consideration. But even if all testimony offered by plaintiff as shown by the bill of exceptions, should be considered, including that of plaintiff himself, whose testimony was excluded by the circuit court under section 5242, that the testimony does not in any degree tend to show a valuable consideration. There is no pretense of any contract existing at any time between John Carey and his daughter Cinderella, no hint in the testimony of any understanding that she should continue to live with her parents for any indefinite period after the execution of the deed; and absolutely nothing to show that Cinderella or John Carey ever thought of the deed in any other light then as a deed of gift. Patterson v. Lamson, 45 Ohio St., 77.
   Burket, C. J.

It is provided in section 4158, Revised Statutes, that real estate, the title to which came by descent, devise or deed of gift, from an ancestor shall, upon the death of the owner intestate without children or their legal representatives, pass to and vest in the' husband or wife-relict of such intestate during his or her natural life, and upon the death of such relict shall pass to and vest in the brothers and sisters of such intestate who are of the blood of the ancestor from whom the estate came. If the estate came not by descent, devise or deed of gift, then the husband or wife relict of such, intestate takes the real estate in fee as provided in section 4159, Revised Statutes.

The lands conveyed to Cinderella, in this case, by her father and mother, did not come to her by descent or devise, but by deed. If the deed which conveyed said lands was a deed of gift, then the judgment of the circuit court as to said lands is right, and should be affirmed; but if it is not a deed of gift, then the judgment is 'wrong, and should be reversed.

The matter of deeds and different conveyances, and their legal effect, is so fully and ably presented in the case of Thompson v. Thompson, 17 Ohio St., 649, that it would not be profitable to again go over the same ground here. It was held in that case, “that a good, as contra-distinguished from a valuable consideration, is sufficient to uphold a deed of conveyance in this state.

By the act of February 22, 1805, 3 O. L., 279, Chase 515, real estate, for the purposes of descent, was divided into two classes, such as came by descent, devise, or deed of gift from an ancestor, and such as came not by descent, devise or deed of gift, but was acquired by purchase by the intestate. This left property which came by deed of gift from one not an ancestor unprovided for.

By the act of February 11, 1824, 22 O. L., 132, Chase, 1313, the words, “but was acquired by purchase by the intestate” were omitted, and ever since that time, the statute in its classification of real estate, has remained as it now is; first, such as came by descent, devise, or deed of gift from an ancestor, and second, such as came not by descent, devise, or deed of gift.

Beginning with the act of 1805, and coming down to the present time, the general assembly has recognized in various statutes, that titles may be acquired by deed of gift; and it follows that as titles can be acquired by deed of gift, they can be transferred by such deed. By the act of April 13,1865, 62 O. L., 172, townships are authorized to acquire real estate by deed of gift. By section 4195, Revised Statutes, deeds of gift to the use of the person making the same, are declared void, clearly implying that other deeds of gift are valid. In Kent’s Commentaries, vol. 4, 463, it is said: “A consideration is generally held to be essential to a good and absolute deed; though a gift or voluntary conveyance will be effectual as between the parties, and is only liable to be questioned in certain cases, when the rights of creditors and subsequent purchasers are concerned. ”

The great weight of authority is, that as between the parties, a gift or voluntary conveyance is valid, and can only be questioned by creditors; and by the recognition given by the general assembly to deeds of gift, and the decision in Thompson v. Thompson, 17 Ohio St., 649, the question as to their validity seems to be fully settled in this state.

Title to real estate acquired by deed of gift from an ancestor, is classed with that which came by descent or devise, and all three are known as ancestral property, because the title comes from an ancestor, and comes without price; it costs nothing. In Walker’s American Law, Tenth Edition, 392, in treating of the rules of ancestral property, it is said: “In this country, or at least in this state, they have been so far altered, that ancestral property, as will be seen hereafter, in-eludes all realty acquired from an ancester, either by descent, devise or deed of gift, where blood is the only consideration; and purchased property includes realty acquired in any other way.” Further along on page' 418, the same author says; “Ancestral property is realty which came to the intestate by descent or devise, from a now dead ancestor, or by deed of actual gift from a living one; there being no other consideration than that of blood. Non-ancestral property is realty which came to the intestate in any other way.”

In providing as to deeds of gift in section 4158, Revised Statutes, regard is had to the title, which means the legal title, and not an equitable title. And in Thompson v. Thompson, 17 Ohio St., 659, the court say: “No question of equity arises in determining the effect of the deed. The question is purely a legal one. ’ ’ To the same effect is Patterson v. Lamson, 45 Ohio St., 77; Stembel v. Martin, 50 Ohio St., 495. While equities are inheritable, the course of descent is controlled by the legal title.

Looking now at the deed in question in this case, and having regard to the legal title, uninfluenced by equity, did the title come to Cinderella by deed of gift or by purchase? The deed says, that the consideration was love and affection for the daughter. If this was all, it would clearly be a deed of gift. But the deed further recites, that it is in consideration of the dutiful obedience and faithful services to us of our said daughter, and in further consideration of one dollar, to us in hand paid by our said daughter. Standing alone, these considerations of obedience, services and one dollar, would clearly make the title one by purchase. How then shall it be solved when the considerations are thus mixed. The title came either by deed of gift or by purchase. It could not come by both; and legally speaking, it could not come partly by deed of gift and partly by purchase. The law as above quoted from Walker solves the question. He says, that to make ancestral property — title by deed of gift — there must be no other consideration than that of blood. Here there was other and additional consideration, and therefore the title came not by deed of gift. As the title came not by deedofgift, it came by purchase, and at the death of Cinderella passed to and vested in her husband, the plaintiff in error, in fee.

The dutiful obedience and faithful services of the daughter may have been rendered under such circumstances as to create no legal obligation against the father to pay for the same even though of great value to him; yet when he voluntarily recognized their value by making them the consideration, in part at least, for the conveyance of a tract of land, he could not after the contract, as evidenced by the deed, was executed, and the deed delivered, annul the same by pleading that he was not legally bound to compensate her. He might well have interposed such plea while the matter was executory, but after being fully executed such plea can avail nothing. What he could not do while living, his heirs cannot do after his death. They stand in his shoes.

Moreover, the consideration of one dollar alone, is sufficient to support the deed as between the parties, and to give it the character of being upon a valuable consideration, as contra-distinguished from a good consideration.

Under the statute of uses, before the statute would execute the use, in bargain and sale, a valuable consideration had to appear, but one dollar was sufficient, no matter what the value of the estate. But a covenant to stand seized to the use of another, required, not a valuable, but a good consideration, such as blood or marriage. Blackstone, Vol. 2, page 338.

The legislature seems to have had these distinctions in mind in framing our statute of descents as to deeds of gift, and intended that a deed of gift from an ancestor should be supported alone, by a consideration of blood or marriage, and that a deed for a consideration other than blood, that is a valuable consideration, should be regarded as a purchase.

There is therefore a clear distinction between our statutes as to deeds of gift, and the statute of California as to gifts of real estate to a wife, and the decisions under the latter statute would not be applicable here. See Peck v. Vandenburg, 30 Cal., 11; Salmon v. Wilson, 41 Cal., 595 ; Bradley v. Love, 60 Texas, 472.

Prom the view thus taken, the other questions made in the record are of no importance, and nothing need be said as to them.

The circuit court erred in applying the law to the conceded and controlling facts, and the judgment complained of in the petition in error will be reversed and judgment entered for the plaintiff in error.

Judgment accordingly.  