
    Paddock v. Adams and Holly, Executors.
    
      Deed of land in trust — Deed and instructions for its execution competent evidence, when — Action to enforce the trust — Section 5242 Revised Statutes.
    
    1. Where the father, being the owner of the quitabl© estate in land, directs the conveyance of the legal title to his son in trust for the father, and in the deed the grantee is designated as trustee, both the deed and instructions for its execution are competent evidence to prove the trust, in an action for its enforcement against the son who denies the trust, and claims the conveyance was a gift or advancement.
    2. An action to enforce such a trust is not an action involving' the validity of the deed, within the purview of the last clause of section 5242, of the Revised Statutes ; and where such action is prosecuted by the executor of the cestui que trust, the adverse party is incompetent to testify to matters occurring before the death of the cestui que trust.
    
    (Decided April 27, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The purpose of the action below, which was brought by the executors of Thomas S. Paddock, against his son Charles S. Paddock, was to enforce the execution of a trust by the latter, under which it was alleged he held the legal title to the property involved, consisting of certain lots in the city of Cleveland, and to subject the property to sale for the benefit of the estate. The consideration for the property, it is claimed, moved entirely from the testator, who caused it to be conveyed to his son upon the trust that he should hold and convey it as the father might direct. The petition describes the property, sets out the terms of the trust, and alleges that by the will the plaintiffs are directed to sell the property in order to provide a fund for the payment of legacies. The defendant, by his answer, controverts the existence and terms of the trust, and alleges that he is the owner in fee simple. In the court of common pleas the plaintiffs prevailed, and the judgment ■rendered in their favor was affirmed by the circuit court. It was admitted on the trial, that prior to the conveyance to the defendant, the plaintiff’s testator was the equitable owner of the property, the legal title to which was held for him, and to be conveyed at his request, by the Woodland Avenue Savings and Loan Company, of Cleveland; and it was not disputed that the deed under which the defendant claims was made by that company to him at his father’s request. The deed, which was properly, executed and acknowledged, contains a description of the property, the usual covenants of title, and against incumbrances, and in terms, “for the consideration of two thousand dollars received of Charles S. Paddock, trustee, the grantee” conveys the property “unto the said grantee, his heirs and assigns,” with a habendum clause to “the said grantee, his heirs and assigns forever.” The clauses quoted above are all that have any relevancy to the questions raised here. The deed was offered in evidence by the plaintiffs,' and the defendant objected to its admission on the ground that it did not tend to prove the issues; and its admission over that objection is one of the errors assigned here.
    It appears from the record, that the elder Paddock had been the owner of a tract of land of which the lots in question were a part, and that the tract had been conveyed by him to the Savings and Loan Company for allotment and sale for his benefit; and these lots were part or all of the tract that remained unsold; and further, that he was then married to his second wife. To prove the instructions which he had given with respect to the execution of the deed to the son, and as tending to prove the terms of the trust upon which the latter held the title, the plaintiffs introduced the testimony of one of the officers of the grantor who executed the deed in its behalf, which was to the effect that he had' several conversations with the father previous to the conveyance, the substance of which was, “that in order to get his wife to sign the deed (to the Savings Company, for allotment and sale), which she was reluctant to do, he gave her what he considered her dower interest, and therefore, when the deed of this property, which was a part of the money that was to come to him personally, he wanted the land instead of money. It was his old home and he had some sentiment about it, and he wanted to keep that land rather than the money, and therefore he hesitated about putting the deed in his own name, because it might be construed that she still had her dower interest. He wanted the deed put where, when he wanted to use it, he could, without any interference from her. He wanted to know if the deed could not be made in blank, to which wé objected, and he said, I will think about it. As I recollect, it was, perhaps a month, or two or three, that he was deciding. I called on him several times to find out in reference to it. He finally said he had decided to have it deeded to his son, Charles S. Paddock, as trustee. What I have stated is the result of a dozen conversations.” The defendant objected to this testimony, and moved to exclude it; and the refusal of the court to do so is assigned for error.
    
      The deed, when executed, was delivered to the father; and the defendant offered himself as a witness to prove that his father delivered the deed to him, with the following statement:
    “My son, I have had a deed made of these two lots to you, and here it is. And if I should need the property for use in my business during my lifetime I will expect you to reconvey it to me, but if not, the lots are yours. But I wish you would not have the deed recorded at the present time, because it might give rise to unpleasant circumstances; to which the'witness replied, “Father, the deed would not be worth the paper it is written upon, unless recorded.” Thereupon Mr. Paddock said to witness : ‘ ‘If that is so you may record the deed. I guess you can afford to pay for recording it, can’t you” ? To which the witness answered, “Yes.” .The witness did thereupon record the deed in the recorder’s office, and since that time, and up to the death of his father, paid the taxes on the land.
    The court excluded the testimony, on the ground that it related to an occurrence which took place before the death of the plaintiff’s testator; and its exclusion, it is contended, was error.
    
      Blandin c& Bice, for plaintiff in error.
    
      G. M. <& A. W. Barber, for defendants in error.
   Williams, J.

Was the evidence to which objection was made by the plaintiff in error, improperly admitted ? The general rule undoubtedly is, that where land is purchased and paid for by one person and the title is taken in the name of another, there is a resulting trust in favor of the former, unless a different intention appears from the deed or attending circumstances; but if the grantee is a child of the person furnishing the purchase price, the presumption is that the convejmnce was intended as a gift or advancement. This presumption is based upon the supposed intention of the father to make suitable provision for his children, either as a token of parental affection, or in discharge of his moral obligation to provide for them. If is but a presumption, however, and may be rebutted by proof of the father’s actual intention to create a trust, which maybe shown by his antecedent or contemporaneous acts and declarations; and when the actual intention in making the conveyance, or causing it to be made, is ascertained, it controls the determination of the question, whether it was in trust or by way of advancement. In Lewin on Tursts, Í75-6, it is said, “the father may prove a parol declaration of trust by himself either before or at the time of the purchase, not that it operates by way of a declaration of trust (for the statute of frauds would interfere to prevent it;) but as the trust would result to the father, were it not rebutted by the sonship, as a circumstance of evidence, the father may counteract that circumstance by evidence arising from his parol declarations. ' Of course the father cannot defeat the advancement by any subsequent declaration of intention. But his evidence is admissible for the purpose of proving what was the intention at the time. ” It is conceded that the entire consideration for the property here involved moved from the plaintiff’s testator, who was the owner of the complete equitable title when the deed was made to his son, the plaintiff in error; and that the conveyance was so made by the father’s direction. In the conveyance the grantee is designated as “trustee,” which, if not conclusive of itself against any claim of advancement, is so far ineonsistent with such a claim as to afford proof of a most satisfactory character that a trust was intended ; and when supplemented by proof of the father’s instructions to make the conveyance in trust, would seem sufficient to overcome any presumption that an advancementorgiftwas intended. At least, both the deed and instructions for its execution were competent evidence to establish the trust, and therefore relevant to the issues.

Was there error in the exclusion of the defendant’s testimony? The action was prosecuted by executors, and the testimony excluded was that of the adverse party relating entirely to what it was claimed had taken place between him and the plaintiff’s testator. It was therefore incompetent, under section 5242, of the Revised Statutes, unless it can be brought within one of the exceptions contained in the section, or is taken out of its operation ; and the contention is, that the action is one involving the validity of a deed, and to actions of that class the, section is rendered inapplicable by its last clause, which provides, “that nothing in this section contained shall apply to actions involving the validity of a deed, will or codicil.”

But we think this action is not of that nature. It is well known what are actions involving the validity of wills, and codicils ; and the association in the same class or category, of actions involving the validity of deeds, is of much significance, in determining the nature of the actions contemplated by this clause of the statute. This action is one to enforce a trust, by compelling a conveyance of the legal title held under the deed, in accordance with the terms of the trust; and the plaintiffs recognize and rely on the deed as a source or muniment of the title they seek to obtain; and all subsequent owners must rely upon it as a necessary link in the chain of their title. The object of the suit is not to invalidate the deed, but to ascertain the nature of the estate it conveyed, give it effect according to the intention of the parties, and enforce their rights as determined by the application of the law to it, in the light of the circumstances under which it was made. If the deed were invalidated, the title would revert to the grantor and his heirs, and thus defeat the trust, as well as extinguish all claims of the defendant under it. The establishment of a trust in lands by parol is not considered as varying* the terms of the deed, but as setting up a new right, arising* by implication of law, or upon a new and independent agreement, or express declaration of trust, consistent with the deed. Fleming v. Donahoe, 5 Ohio, 256; Harvey v. Gardner, 41 Ohio, St., 646. Beside, the deed under which the defendant holds, is not on its face an unqualified grant of the land in fee, but the conveyance is expressed to be in trust, without fully setting out what are claimed to be the terms of the trust; and those here sought to be established by the evidence are not inconsistent with the deed-, nor destructive of the estate it purports to convey, nor substantially different from those which would result by implication of law in the absence of the relationship of the grantee to the owner of the equitable estate.

We are therefore of opinion the evidence excluded was incompetent.

Judgment affi/nned.  