
    No. 206
    DAVIS v. HAMBLY
    Ohio Appeals, 9th Dist., Summit County
    No. 795.
    Decided Jan. 29, 1924
    485. EXECUTORS — Grantee of land from husband may testify in action to set aside deed under 11495 GC., even though plaintiff is executrix.
    563. FRAUDULENT CONVEYANCES — Burden is on plaintiff in action to set aside deed, to prove transfer in bad faith, insufficient consideration and knowledge of fraudulent intent.
    677. JUDGMENTS — Judgment creditor, levying upon lands the equitable owner of which is oné not the judgment debtor, obtains no lien.
    Attorn ys — Carl M. Myers, for -Davies; C. G. Roetzel, for Hambly; all of- Akron.
   FUNK, P. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in the Common Pleas to set-aside as fraudulent a deed made to defendant, Della Hambly, by her husband against whom plaintiff’s deceased husband had a judgment. Plaintiff, Jane D. Davies, was the executrix of her said deceased husband. Judgment was rendered for defendant and plaintiff appealed. Held:

1. It was competent for defendant to testify at the trial, even though plaintiff w'as an executrix, for the reason that 11459 GC. provides “Nothing in this section shall apply to . . . actions or proceedings involving the valdity of a deed.”

2. It appears from the evidence that defendant was the equitable owner of the real estate in question. A judgment creditor levying upon property has a lien on only such interest as the judgment debtor may have therein. Therefore plaintiff has no lien.

3. In order for plaintiff to obtain a decree she must prove that the transfer was in bad faith, that there was an insufficient consideration and also that defendant had knowledge of a fraudulent intent. This, plaintiff has failed to do. Petition dismissed.  