
    TRUSTS.
    [Stark (5th) Court of Appeals,
    March 22, 1917.]
    Powell, Houck and Shields, JJ.
    Rose Wagner v. Mahala Wagner et al.
    Clear and Convincing Evidence Required to Establish Trust in Land Based on Claim of Money Advanced for Purchase.
    A trust can he grafted on land, held hy a deed absolute on its-face, only by evidence which is clear and of the most convincing character, and a claim of a lien on the proceeds arising from the sale in partition of land so held, on account of money advanced for its purchase, will be denied where the evidence as to the claim falls short of being of a clear and convincing character.
    [Syllabus by the court.]
    Appeal.
    
      C. C. TJpham, for plaintiff.
    
      S. F. Bowman and Amerman & Mills, for ‘defendant.
   HOUCK, J.

This ease was submitted to this court on the pleadings and the evidence as contained in the transcript of same taken in the court below. The pleadings in substance are as follows:

The plaintiff, Rose Wagner, filed her petition in the common pleas court of Stark county, Ohio, on April 11,1916 alleging that she had a legal right and was seized in fee simple of certain, real estate described in the petition; that the defendant, Mahala i Wagner, was the owner of the other undivided half of said premises, and that the defendant, John S. Wagner, was the husband of said Mahala Wagner, and that the defendant, James Hindman, claimed to hold a mortgage on said premises. The prayer of the petition was that- the defendant Hindman be required to set up his mortgage or be forever -barred from doing -so, and that said premises be partitioned and plaintiff’s share set off to her, or said premises be sold and her share be awarded to her in money, subject to a certain lease of said premises which was excluded, and still exists, but in no way interferes with the partition proceedings in this ease.

The defendant, James Hindman, filed an answer and cross-petition setting up bis mortgage on said premises, amounting to $2,884.37, with interest, which he claimed was the first and best lien on said premises, and prayed judgment for the same and the sale of said premises, and that the proceeds of said sale be applied on his mortgage.

The defendants, Mahala Wagner and John S. Wagner, filed a joint answer and cross petition in which.they admitted that plaintiff held the legal title to the one-half of said premises, and that the defendant, Mahala Wagner, held the legal title-to the other undivided one-half of said premises, and that the defendant, John S. Wagner, was the husband of said Mahala Wagner and had an inchoate right of dower in said premises, and further admitted that the mortgage of the defendant, James. Hindman, was a good and valid lien against the premises, and, further answering, denied each and every other allegation in plaintiff’s petition not expressly admitted to be true. In their cross petition Mahala Wagner and John S. Wagner averred that at the time said premises sought to be partitioned were purchased that the only consideration that was paid at that time was $1,000, which was paid by the defendants, Mahala Wagner and John S. Wagner; that on April 21, 1907, defendants further paid the sum of $800 on the purchase price of the premises, and since March 23, 1905, at which time the premises were purchased, they paid all the taxes, which amounted to $273.30; that ever since March 23, 1905, the plaintiff, Rose. Wagner, occupied the premises as her home, and had not accounted to these answering defendants for any of the rents and profits of the same, and prayed for an accounting between the parties, and that these defendants recover out of the proceeds of the sale of the lands the amounts they paid on the purchase price, together with the taxes and interest at six per cent and that they be decreed their interest in said property in money, and for such other relief as they be entitled to in the-premises.

The plaintiff filed a reply to the cross petition of the .defendants, John S. Wagner and Mahala Wagner, the same being in the nature of a general denial as to all the material allegations, contained therein.

Upon tbe issues raised by these pleadings and tbe evidence, tbe case was submitted to this court for its determination.

Tbe contention of tbe defendants is that they paid all tbe money that bad been paid on tbe lands in question, saving and excepting possibly tbe sum of about $500 ; that they also- paid the taxes; and asked that out of tbe proceeds of tbe sale of said lands that they be reimbursed, as an accounting between tbe parties hereto shall show and be determined by tbe court. In other words, they seek to have impressed upon tbe fund arising from tbe sale of said premises a trust in their favor to tbe amount claimed to have been paid by them on said lands and for tbe taxes.

We think tbe law is well settled in this state as to what constitutes an express trust, as well as an implied trust, and tbe evidence necessary to sustain such. It will be seen that from tbe issues raised by tbe pleadings and tbe evidence submitted in support of same that it is attempted to engraft a trust on lands held by a deed absolute on its face.

A trust can not be established by mere conjecture or from tbe mere circumstances and surroundings of any particular ease or state of facts, but must be established by clear, certain, definite and positive evidence, in proof not only of tbe existence of tbe trust at tbe time of tbe conveyance, but also of its terms and conditions. Therefore, tbe evidence necessary to engraft a trust on lands held by deed which is absolute on its face, or the proceeds arising from their sale, as claimed in tbe present case, must be clear and of tbe most convincing character. This rule of law is laid down in tbe case of Boughman v. Boughman, 69 Ohio St. 273 [67 N. E. 430], tbe syllabus being as follows:

“Equity requires that parol evidence, to engraft an express trust in lands upon a deed .absolute, shall clearly and convincingly show that contemporaneously with tbe execution of tbe deed the terms of the trust were declared and tbe beneficiaries designated. ’ ’

Applying tbe rule of law as herein laid down to tbe proven facts of the ease at bar we are bound to find that tbe claim of the defendants is not well founded as to their being entitled to recover for tbe moneys alleged to have been paid by them on the real estate in question. We are bound to arrive at this conclusion alter a careful examination of all the testimony and evidence offered in this case, and we have no hesitancy in saying that it is not of that clear, positive character and nature as to warrant a court to find that a trust had been created in the lands in question or in the proceeds arising therefrom.

But how stand the issues in this case as to the taxes and rents and profits? Without discussing these questions further than to say that we are of the opinion from the evidence in the case and the law governing the facts so established by the evidence, we find that Rose Wagner should account for her share of the taxes to John S. Wagner from April 18, 1912, to November 13, 1913, and to account to Mahala Wagner for one-half of the rents and profits from said lands from the date of the deed from John S. Wagner and Mahala Wagner to Rose Wagner, being November 13, 1913.

We further find that the claim of James Hindman as to the amount due him on his notes and mortgage, as set forth in h-is answer and cross petition, are undisputed, and therefore find that he is entitled to a decree in his favor as prayed for in his cross petition. We further find that the plaintiff is entitled to a decree in her favor for partition of the real estate described in her petition as prayed for therein.

A decree and judgment accordingly, and an entry may be drawn by counsel in accordance with the findings herein

Powell and Shields, JJ., concur.  