
    Thiessen et al. v. Moore et al.
    
      Deeds — Consideration—Recital conclusively determines cotirse of descent, when — Divorce and alimony — Jurisdiction—Care and custody of children limited to minority — Collateral attach — Decree directing descent of realty after death of parents — Validity of deed releasing right to inherit.
    
    1. The consideration paid for a conveyance of real estate determines its course of descent, and the recital in the deed of conveyance of the payment of the consideration is “operative words” within the meaning and intent of the declaration of this court in the case of Shehy v. Cunningham, 81 Ohio St., 289, and for the purpose of determining the course of descent is conclusive.
    2. In a divorce, alimony, custody, support and maintenance proceeding the court is without power to make a decree with reference to the maintenance of minor children beyond the date when such children shall arrive at their majority, and a decree which purposes and attempts to direct the course of the succession to the title of real estate after the death of the parents is in that respect ultra vires and void and may be attacked in a collateral proceeding.
    3. A quitclaim deed attempting to release a right to inherit, which right is neither vested nor contingent, has no subject-mafter on which the instrument can operate, and is void.
    (No. 17152
    Decided July 5, 1922.)
    Error to the Court of Appeals of Lorain county.
    At the request of the plaintiffs the court of appeals made the following separate finding of facts and conclusions of law, the finding of facts reciting:
    “First: In November, 1893, Henry Moore, Sr., was a widower with three children, all of whom were of age. The plaintiffs, Henrietta Thiessen and Asa Moore are two of these children and the plaintiff George McClelland is a son and the only surviving child and heir at law of the third child, to-wit, Alva Johnson, now and long since deceased.
    “On and before said date, Henry Moore, Sr., owned both parcels of real estate involved in thi3 action, together with other real estate and certain personal property.
    “Second: In November, 1893, Henry Moore, Sr., married Ida C. Moore, one of the defendants and there was born of this second marriage the following children:
    “Erma Moore, August 28,1894,
    “Harold Moore, February 15, 1896,
    “Henry Moore, Jr., January 24,1898, and
    “Wilbur Moore, March 5,1900. The last of whom died intestate, unmarried and without issue January 17, 1918.
    “Third: In March, 1894 after the marriage to said Ida C. Moore, said Henry Moore, Sr., said Ida C. Moore, his wife, joining with him, executed and delivered to Asa Moore, one of the plaintiffs, a Quit Claim Deed for 7% acres of land which Henry Moore, Sr., owned at the time of said second marriage and at the same time, Asa Moore executed and delivered to Henry Moore, Sr., a Quit Claim Deed which said deed is in the words and figures following, to-wit:
    “ ‘Know all men by these presents that I, Assa Moore and Mary Moore, wife of Assa Moore, the grantors, for divers good causes and considerations thereunto moving, and especially for the sum of valuable gifts and grants Dollars ($) received to my full satisfaction of Henry Moore, my father, the grantee, have granted, remised, released, and forever quit-claimed and do by these presents absolutely grant, remise, release and forever quit-claim unto the said grantee, his heirs forever, all such right and title as we the said grantors have or ought to have in and to the following described lands and tenements. Situated in the town of Avon, County of Lorain and State of Ohio, and know as part of Sec. No. (6) containing more or less real estate up to this date, and at his death. I the said Assa Moore, son of said Henry Moore, do hereby remise, release and forever quit claim to said grantee all my right and title to any and all personal estate that may be found to belong to said grantee at his death, subject to division between said grantee’s heirs. This heirs right of said grantees estate at his death. I the said Asa Moore grantor, son Eelact of said Henry Moore, grantee. I do hereby relinquish, release and quit claim to forever.. under condition of deed of conveyance granted by said Henry Moore the said grantee as above, for lands and tenements to me the said Asa Moore. Deed dated March 12th, 1894, hereto referd to. To have and to hold the above estate aforesaid with the appurtenances thereunto belonging, unto the said grantee, his heirs, so that neither I the said grantor nor my heirs nor any other persons claiming title through or under me shall or will here after claim or demand any right or title to the said estate or any part thereof; but they and every one of them shall by these presents be excluded and forever barred. And I the said Mary Moore wife of said Assa Moore, do hereby remise, release and forever quit-claim unto the said grantee and his heirs and assigns all my right and title of dover in the above described premises. In witness whereof we hereunto set our hands and seal the 12th day of March in the year of our Lord One Thousand Eight Hundred and Ninety-Four. * * *’ [Duly signed and acknowledged.]
    “It is agreed by the parties that the above deed mentions Section 6, whereas it should have mentioned Section 7. Section 6 was inserted therein by mistake by the scrivener.
    “In April, 1896, Henry Moore, Sr., said Ida C. Moore, his wife, joining with him, deeded to Henrietta Thiessen, by Warranty Deed, one of the plaintiffs 8% acres of land which he owned at the time of said second marriage and she gave to her father, Henry Moore, Sr., a Quit Claim Deed; which said deed is in the words and figures following, to-wit:
    “ ‘Know all men by these presents that I, Henrietta Moore ne Teizen, and Jacob Teizen, husband of said Henrietta Moore, of the County of Lorain and State of Ohio, in consideration of the sum of a valuable consideration of Dollars, to me or us paid by Henry Moore, father of said Henrietta Teizen, the receipt whereof is hereby acknowledged, do hereby remise, release and forever qnit-claim to the said Henry Moore, all my right and title as heir, or to my heirs and assigns forever the following real estate. Situate in the County of Lorain or elsewhere. That he the said Henry Moore, my said father, may now have, or that he may ever hereafter be possessed of, in consideration of full heirship, of all rights that I as heir at law have or ought to have in any lands or tenements, that he the said Henry Moore, father, relact, has, from and after this date. Also we do further release and quit-claim all our rights and title as heirs of said Henry Moore to all personal property that he the said Henry Moore may now have or may hereafter have, at his death, subject to distribution to his heirs, in consideration of the gifts and grant made to us as above set forth. To have and to hold said premises, and all other grants as above set forth, with all the privileges and appurtenances thereto belonging, to the said Henry Moore his heirs and assigns forever. In witness whereof the said Henrietta Teizen with Jacob Teizen her husband does hereby their names hereto attach, and said Henrietta Teizen does hereby relinquish all her right of dower in the premises, we hereto set our hands this 25th day of April in the year of our Lord One Thousand Eight Hundred and Ninety-six.
    ‘ ‘ ‘ Signed and acknowledged in presence of
    “ ‘A. W. Sherbondy, Henrietta Thiessen.
    “ ‘Barbara Weigart, Jacob Thiessen/
    “Fourth: July 17, 1900, Ida C. Moore, began a proceeding for divorce and alimony, asking for the custody of her four minor children and for equitable relief, against Henry Moore, Sr. Said ease being known as No. 6056, Lorain County Common Pleas Court. On March 29, 1901, Henry Moore, Sr., and his wife, Ida C. Moore, entered into an agreement, settling their differences and disagreements and dismissing said suit and on said date entered into an agreement, a copy of which is as follows:
    ‘ ‘ ‘ This Memorandum of an Agreement, made this 29th day of March, 1901, between Henry Moore, party of the first part, and Ida C. Moore, party of the second part: witnesseth:
    “ ‘That all differences and disagreements between the two parties are mutually settled. The parties hereto are to return to their home in Avon and live together as man and wife each agreeing with the other, that he and she will hereafter faithfully keep and perform all their marital duties toward each other. The case now pending in the court of common pleas of Lorain County, Ohio, numbered 6056 is to be dismissed at the cost of party of the first part, except the witness fees and subpoening same of plaintiff.
    “ ‘If at any time in the future it would become necessary for the purpose of supporting and maintaining the parties hereto and their children to sell all or any portion of the lands owned by party of the first part in Section 7, Avon Township, Lorain County, Ohio, and lying North of the Lake Wagon Road running across said Section, said wife hereto agrees to execute deed therefor to the purchaser or purchasers thereof, releasing her interest of dower therein.
    “ ‘In witness whereof, the parties hereto have hereunto set their hands the day and year first above written. * * * ’ [Duly signed and acknowledged.]
    “Fifth: At the time said divorce and alimony action was instituted and at the time of said settlement, said Henry Moore, Sr., owned the two separate parcels of land known by the parties hereto as the two acre plus tract which was valuable lake front property and the 54 acre tract. The first mentioned piece being north of the Lake Road, so-called, Avon Township, Lorain County, Ohio, and the second parcel being immediately opposite the first mentioned parcel and south of said highway. The settlement of the alimony and divorce case above mentioned was brought about by Henry Moore, Sr., deeding a life interest in said 54 acre tract to his second wife, Ida C. Moore, and the fee simple title to his said four minor children by the second marriage, reserving a life estate for himself and which said deed is in the following language:
    “ ‘Know all men by these presents, That I, Henry Moore, the Grantor, .for divers good causes and considerations thereunto moving, and especially for the sum of one Dollars ($1.00), received to my full satisfaction of Ida C. Moore, Erma Moore, Harold Moore, Henry Moore, Wilbur Moore and any child, the fruit of the present marriage relation between said Henry Moore and Ida C. Moore hereafter born, the Grantees, have given, granted, remised, released and forever quit-claimed, and do by these presents absolutely give, grant, remise, release and forever quit-claim unto the said grantees the several interests hereinafter stated, their heirs and assigns, forever, all such right and title as I, the said grantor, have or ought to have in and to the following described piece or parcel of land:
    
      “ ‘Situated in the township of Avon, County of Lorain, and State of Ohio, and known as a part of section No. seven in said township, and bounded as follows: on the north by the Lake Shore "Wagon road crossing said section; on the east by the east line of said section No. 7; on the south in part by lands of J. Gates ’ heirs, and in part by lands of D. Sherman in said section No. 7 and on the west in part by lands in said section No. 7 owned by D. Sherman, and in part by lands in said section OAvned by C. M. Green, and being all the land owned by grantor lying south of said highway in said section No. seven.
    “ ‘The conveyance made to Ida C. Moore is a life estate in said premises subject to the life estate hereinafter reserved to grantor. Subject to the life estate hereinafter reserved to grantor and the life estate conveyed to Ida C. Moore the above described premises are hereby conveyed to said Erma Moore, Harold Moore, Henry Moore and Wilbur Moore and any other children that may be born of their marriage to each other in fee simple.
    “ ‘Said conveyance to said children is hereby made subject to said life estates to said grantor and said Ida C. Moore hereinbefore mentioned.
    “ ‘Reserving and excepting from the above conveyance one acre and no more of land, more or less, heretofore sold by grantor to Miss Alma Sedaker taken from the north east comer of above as surveyed by J. W. Stone.
    “ ‘To have and to hold the premises aforesaid, as above particularly set forth to the several grantees, their heirs and assigns, Avith the appurtenances thereunto belonging, unto the said grantees, their heirs and assigns, so that neither I, the said Grantor, nor my heirs, nor any other persons claiming title through or under me, or any other person claiming title through or under me, shall or will hereafter claim or demand any right or title to the premises, or any part thereof; but they and every one of them shall by these presents to excluded and forever barred.
    “ ‘In witness whereof, I hereunto set my hand and seal the 29th day of March in the year of our Lord One Thousand Nine Hundred and one. * * *> [Duly signed and acknowledged.]
    “There were no other children born.
    ‘ ‘ That the $1.00 consideration recited in said deed was paid, and in addition thereto the settlement agreement, which was a part of the same transaction, constituted a valuable consideration for such deed.
    “Sixth. June 15, 1904, Ida C. Moore again sued Henry Moore, Sr., for divorce and alimony, custody of minor children and equitable relief. In this second suit the settlement of the first suit was plead by Henry Moore, Sr., as a defense thereto. June 29, 1905, after hearing, at which both parties were represented, Ida C. Moore was granted by the Common Pleas Court of Lorain County, Ohio, divorce, alimony and custody of her four minor children above named; the decree in said suit being as follows : * * * [Caption not reproduced here.]
    “ ‘This cause came on to be heard this day on the amended petition, the answer and cross petition of the defendant Henry Moore, the reply and answer thereto of plaintiff and the evidence, and on due consideration thereof, the court finds that the plaintiff at the time of filing her petition, had been a resident of the State of Ohio, for one year next preceding the same, and was at that time a bona fide resident of this County of Lorain and that the parties were married as in said petition set forth and that there were born as the issue of such marriage, Erma aged 12 years, Henry aged 6 years, Harold aged 8 years and Wilbert aged 4 years. The court further find upon the evidence adduced that the defendant Henry Moore has been guilty of extreme cruelty as alleged in the amended petition and that by reason thereof the plaintiff is entitled to a divorce as prayed for.
    “ ‘It is therefore ordered and adjudged by the court that the marriage contract heretofore existing between the said Ida M. Moore and Henry Moore be and the same is hereby dissolved and both parties are released from the obligations of the same. It is further ordered that the exclusive custody, save education and control of the said children of the parties hereto be and the same is confided to said Ida M. Moore exclusively. But it is ordered hereby that said Henry Moore, have the privilege of visiting said children at reasonable times and intervals and for a reasonable length of time, and that said children may visit him at reasonable times and intervals and for a reasonable length of time.
    “ ‘The court further find that said Henry Moore, is the owner of about 2 acres of property, bounded and described as follows: located in section seven Avon Township, Lorain County, Ohio, and bounded on the north by Lake Erie, on the south by the East and West road, on the East by lands of Fred Rosenswig and on the west by lands of John Meckes.
    
      “ ‘It is further ordered and adjudged that said Ida M. Moore, have and possess as and for alimony the sum of $400 in money, payable forthwith out of funds now in hands of H. C. Wilcox, Clerk of Court of Common Pleas, Lorain County, Ohio.
    “ ‘And it is further ordered that beginning with July 1, 1906, said Henry Moore shall pay said Ida M. Moore, the sum of $10 per month due on the first day of each month during his natural life, for her support and maintenance. And that with reference to the real estate hereinbefore described. It is further ordered that defendant Henry Moore, convey by good and sufficient deed the real estate above described to plaintiff for her natural life and the fee of said real estate to said children absolutely reserving in himself the use, possession and. control of said property for his natural life time. Said real estate as aforesaid ordered to be conveyed is described as follows: Situated in Section 7, Avon Township, Lo-rain County, Ohio, and bounded and described on the north by Lake Brie, on the east by the land of Fred Rosens wig, on the south by the east and west road and on the west by land of John Meckes. And it is further ordered that upon failure of said Henry Moore to execute said conveyance within five days from the entry hereof, that this decree shall operate as such conveyance and in that case it is ordered that the Clerk cause so much of this decree to be recorded in the office of the Recorder of this County as will show such change of title. It is further ordered that in default of any payment herein directed to be paid for three days, execution is allowed to issue therefor; after payment of said $400 to the plaintiff as herein above ordered the balance of the funds in hands of H. C. Wilcox, Clerk is to be paid to the defendant Henry Moore forthwith.
    “ ‘It is further ordered the plaintiff pay of the costs the sum of Fifty Dollars and defendant Henry Moore pay the balance of said costs to-wit the sum of $......, out of the respective shares ordered to be paid said Ida M. Moore and Henry Moore out of funds in hands of said Clerk and if appeal is perfected hereto the same is to be without prejudice to former order as to alimony pending suit.’
    “Whereupon defendant Henry Moore gave notice of appeal, bond which was fixed at sum of $200.
    ‘ ‘ The decree provided that on failure of said Henry Moore, Sr., to make deed of the premises therein referred to, that such decree should operate as such conveyance; the said Henry Moore, Sr., failing to make conveyance in said decree provided the Clerk of Courts certified so much of said decree as was necessary to show change of title to the Recorder of Lorain County, Ohio, for record; which said certification is the words and figures following to-wit: “ ‘The court further finds that the said Henry Moore is the owner of about two acres of property bounded and described as follows: Located in section No. 7, Avon Township, Lorain County, Ohio, and bounded on the North by Lake Erie; South by the East and West road, on the East by lands of Fred Rosenswig and on the West by lands of John Meckes:
    “ ‘And with reference to the Real Estate herein before described is further ordered that Henry Moore convey by good and sufficient deed the real estate above described to plaintiff for her natural life and the fee of the said real estate to said children absolutely, reserving in bimself the use, possession and control of said property for his natural lifetime. Said real estate so as aforesaid ordered to be conveyed is described as follows: Situated in Section No. 7, Avon Township, Lorain County, Ohio, and bounded and described on the North by Lake Erie, on the East by lands of Fred Rosenswig on the South by the East and West Road and on the West by lands of John Meckes, and it is further ordered that upon failure of said Henry Moore to execute the said conveyance within five days from the entry hereof, that this decree shall operate as such conveyance and in that case it is ordered that the Clerk cause so much of this decree to be recorded in the office of the Recorder of this County as will show change of title. * * *’ [Duly certified by clerk of court.]
    “Henry Moore, Sr., appealed said cause to the then Circuit Court, Lorain County, Ohio, and which said cause pended in said Circuit Court until October 2d, 1905, when said Henry Moore, Sr., voluntarily dismissed the same at his own costs and thereafter paid such costs.
    “In 1906, Henry Moore, Sr., and Ida Moore, conveyed to Anna Meckes a small tract out of said two acre plus parcel and expressly stipulated in their deed that the title conveyed by them was a life interest only.
    “December 8,. 1906, Henry Moore, Sr., having theretofore caused himself to be appointed guardian of Erma, Harold, Henry and Wilbur, his said minor children, by proceedings duly had in the Probate Court of Lorain County, Ohio, and after authorization by said Probate Court, conveyed by guardian's deed the fee simple title in said tract as such guardian to said Anna Meches, the said parcel so conveyed to Anna Meckes was a portion of the land included in the decree of the court in the divorce proceeding in 1905.
    “Seventh: Henry Moore, Sr., died testate, March 5, 1910, leaving a will in the words and figures following, to-wit:
    “ ‘I Henry Moore of Avon Township, Lorain Co., Ohio, being in sound mind although old, declare this document written on one connected sheet of paper, to be my last will and testament disposing of all my property real and personal belonging to me and revoking any and all wills that I may have heretofore made. I appoint Truman Moore of Lorain, Ohio, trustee of all my property real and personal.
    ‘ ‘ ‘ First I desire my trustee to pay my funeral expenses and just debts out of the proceeds of my said property. Second to pay one dollar to each of my children by my first wife, to-wit, Asa Moore, Henrietta Theisen and Elba Johnson. The children by my second wife are provided for in documents of zecord heretofore drawn. I desire my trustee to take and hold what may remain of my said property after paying said funeral expenses, debts and bequest in trust for benefit of Wilbur Moore my youngest son by my second wife, and to place at his disposal when he reaches the age of twenty-one. In case of necessity my trustee whom I also desire to be my executor in this matter, may sell or mortgage my said real property and may sell personal property to carry out terms of this will or assist in paying the expenses of said Wilbur Moore. To provide for the contingency of the death or inability or unwillingness of said Truman Moore to act as my trustee as herein provided. I request that said Truman Moore have a trustee and executor duly appointed by the court to carry out provision of my last will and testament. I hereby attach my name this 11th day of February, 1910. * * * ’ [Duly signed and acknowledged.]
    ‘ ‘ Said will was duly admitted to Probate and Truman Moore designated in the will as Executor declining to serve, application for Administration upon the estate of Henry Moore, Sr., was made by C. E. Van Deusen, May 12,1910. This application shows on its face that decedent owned no real estate. Plaintiffs, Asa Moore and Henrietta Thiessen signed the bond for C. E. Van Deusen, Administrator of the estate of Henry Moore, Sr. The final account rendered by the Administrator of said estate disclosed that the decedent had no property.
    “The application by Henry Moore, Sr., for appointment as Guardian of his four minor children above named made October 30,1906, states that said children owned the fee in about 56 acres of real estate subject to the life estate of Henry Moore, Sr., and Mrs. Henry Moore, therein. This included the 54 acre tract and the two acres plus piece herein-before referred to.”
    As its conclusions of law, the court of appeals found:
    “1. That evidence offered by plaintiffs tending to prove that $1.00 consideration recited in the deed of Henry Moore, Sr., to his four children by his second marriage, of the fifty-four acre parcel of land, was not paid, was incompetent; that said four children, grantees in said deed, obtained their interest in said fifty-four acre tract by a deed of purchase, and upon the death of Wilbur Moore, his interest therein descended to his brothers and sisters of the whole blood, to-wit: Erma Moore, Harold Moore and Henry Moore, Jr., and that plaintiffs, not being of the whole blood, have no interest in the premises or any part thereof conveyed by said deed, and that the title to the same is vested in the three surviving children of Henry Moore, Sr., last above named, subject to the life estate of their mother, Ida C. Moore.
    
      “2. That the decree of the court in the divorce proceedings of 1905, was a good and valid decree, and conveyed the fee of the two acre parcel of land from Henry Moore, Sr., to his children, named therein, subject to the life estate mentioned therein; that the title acquired thereby came by purchase and not by descent, devise or deed of gift, and that plaintiffs have no interest in the premises so conveyed by said decree of court.
    “3. That plaintiff’s petition should be and hereby is dismissed at the cost of plaintiffs, and the title to both of said parcels of land is quieted in the defendants ; judgment is hereby rendered against plaintiffs for all the costs in this action. To each and all the foregoing findings of fact and conclusions of law, plaintiffs except.”
    
      Mr. D. M. Bader and Mr. J. H. Saltsman, for plaintiffs in error.
    
      Messrs. Lamb, Vaughan & Lamb and Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, for defendants in error.
   Robinson, J.

This was an action to quiet title and to partition property described in the petition. The court of common pleas found for plaintiffs, plaintiffs in error here. The court of appeals upon appeal found for the defendants.

The questions:

1. Was the recital in the deed of the receipt of one dollar conclusive?

2. Did the deed of Henry Moore, Sr., to Ida C. Moore, Erma Moore, Harold Moore, Henry Moore, Jr., and Wilbur Moore, east upon the grantees a title by purchase or one by deed of gift?

3. Was the decree of the court in a divorce proceeding between Ida C. Moore and Henry Mooré, Sr., attempting to convey real estate to Ida C. Moore for life and remainder to Erma Moore, Asa Moore, Henry Moore, Jr., and Wilbur Moore, subject to the life estate of Henry Moore, Sr., effective to accomplish such transfer of title?

4. Were the quitclaim deeds of Asa Moore and Henrietta Thiessen Johnson to Henry Moore, Sr., releasing to him their right to inherit from him, effective to prevent their inheritance from Wilbur Moore?

The plaintiffs in error Henrietta Thiessen Johnson and Asa Moore, are, respectively, the daughter and son of Henry Moore, Sr., and Cornelia Moore, both deceased. The plaintiff in error George Mc-Clelland, is a grandson, the only surviving child of Alba Johnson, a deceased daughter of Henry and Cornelia Moore. The defendant in error Ida Moore is a second wife of Henry Moore, Sr., and survives him. The defendants in error Erma Moore Waters, Harold Moore and Henry Moore, Jr., are the children of Henry Moore, Sr., and Ida Moore.

"Wilbur Moore, a son of Henry Moore, Jr., and Ida Moore, died intestate, unmarried, and without issue, and the whole controversy arises out of the character of his title to the separate tracts. If by purchase, it would descend to the brothers and sisters of the whole blood, under Section 8574, General Code. If by devise or deed of gift, it would descend to the brother and sisters of the whole and half blood of the ancestor, under Section 8573, General Code.

The 54-acre tract belonged to Henry Moore, Sr., at the time of his marriage with Ida C. Moore. After the birth of the children Ida C. Moore instituted proceedings in divorce against Henry Moore, which proceedings were settled, and concurrent with, and as a part of such settlement, Henry Moore executed a quitclaim deed of the 54 acres to Ida C. Moore for life, with remainder to their children, Erma, Harold, Henry and Wilbur, reserving to himself a life estate therein, the deed reciting “That I, Henry Moore, the Grant- or, for divers good causes and considerations thereunto moving, and especially for the sum of One Dollars ($1.00), received to my full satisfaction of Ida C. Moore, Erma Moore, Harold Moore, Henry Moore, Wilbur Moore and any child, the fruit of the present marriage relation between said Henry Moore and Ida C. Moore hereafter bom, the Grantees, have given, granted, remised,” etc.

The effect of such a recital in a deed upon the course of descent is no longer an open question in this state. This court in the case of Shehy v. Cunningham, 81 Ohio St., 289, held: “The consideration clause in a deed of conveyance is conclusive for the purpose of giving effect to the operative words of the deed, hut for every other purpose it is open to explanation by parol proof and is prima facie evidence only of the amount, kind and receipt of the consideration. ’ ’ Had this court in that case defined its use of the word “operative” there would have been no occasion for further declaration upon that subject. A reading of the opinion, however, discloses that the former decisions of this court were there considered and adhered to and that the wording of the syllabus was designed and intended to be in harmony therewith, from which it is apparent that the court intended to and did include within “the operative words of a deed” those words which indicate the character of the title as affecting its course of descent.

In the case of Patterson v. Lamson, 45 Ohio St., 77, this court held:

“1. Under the statutes of descent and distribution, the course of descent of real estate is to be controlled by the legal title.

“2. Where the intestate’s title to real estate is free from controversy, in determining its course of descent and whether it is ancestral or non-ancestral property, the statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law.

“3. In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, hy parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration was in fact paid by him.”

In the case of Groves v. Groves, 65 Ohio St., 442, this court held: “Where the consideration expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it is not competent to show by parol, that in fact the title came by deed of gift, and thereby change the line of descent.”

We, therefore, have no hesitancy in reaching the conclusion that for the purpose of determining the course of descent the recital in the deed of the payment of a valuable consideration is conclusive, and that the title to the undivided one-fourth of the 54 acres came to Wilbur Moore by purchase, and, upon his death, intestate and without issue, it passed under Section 8574, General Code, to his brothers and sisters of the whole blood.

Coming to the consideration of the third question, the record discloses that in 1905 Ida C. Moore filed a second petition for divorce against Henry Moore, Sr., and upon hearing was granted a divorce, and that the court in that proceeding ordered that Henry Moore, Sr., “convey by good and sufficient deed the real estate above described [being two acres plus] to plaintiff for her natural life and the fee of said real estate to said children absolutely reserving in himself the use, possession and control of said property for his natural life time * * * And it is further ordered that upon failure of said Henry Moore to execute said conveyance within five days from the entry hereof, that this decree shall operate as such conveyance.” Henry Moore, Sr., did not convey the real estate. Henry Moore, Sr., died testate, devising his real estate to Wilbur Moore.

Section 8034, General Code, provides: “The court may order either or both parents to support or help support such children, whoever be their custodian, and also may make any just and reasonable order or decree, permitting the parent who is deprived of such care, custody and control of children to visit and have temporary custody of them.”

Section 11987, General Code, provides: “The granting of a divorce and dissolution of the marriage in no wise shall affect the legitimacy of children of the parties thereto. The court shall make such order for the disposition, care and maintenance of the children, if any, as is just.”

Section 7997, General Code, provides: “The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.”

The legal obligation of the parent to support his children extends to but not beyond each child’s majority. This court in the casé of West v. West, 100 Ohio St., 33, approved its former holding in the case of Marleau v. Marleau, 95 Ohio St., 162, wherein it declared “A proceeding for alimony does not invoke the equity powers of the court but is controlled by statute. The court is only authorized to exercise such power as the statute expressly gives, and such as is necessary to make its orders and decrees effective.”

The legislature having imposed no obligation upon the parent beyond the majority of the children, the court was without power to create such obligation, was without power to do other than provide for the maintenance, care, education and custody of the children during minority, and was without power to make any order with reference to the children which was not for the purpose of maintenance, care, custody and control during minority.

That the order to convey the remainder of the real estate to the children in this case had no reference to maintenance is apparent from the fact that there was reserved, first, a life estate to Henry Moore, Sr., second, a life estate to Ida Moore; and while of course the court could not know that those life estates would not be extinguished during the minority- of the children, yet there is no attempt in the order to limit its application and operative effect to such contingency. The effect, and undoubted purpose of the order, was to direct the course of the succession to the title to the real estate after the death of the parents, and not to provide maintenance for the children during minority; it was beyond the jurisdiction of the court in that respect, was absolutely void, and for that reason.may be attacked in this or other collateral action.

As to the quitclaim deeds attempting to release the right to inherit from Henry Moore, Sr., it is sufficient to say that at the time these deeds were executed the grantors had neither a vested nor a contingent right in the estate they sought to relinquish, there was no subject-matter upon which the instruments could operate, and they were therefore void.

The judgment of the court of appeals is affirmed as to the 54 56/100 acres, as described in the journal entry of the court of appeals as “Parcel No. One,” and is reversed as to the 2 37/100 acres of land described in the journal entry as “Parcel No. Two.” The cause in so far as it pertains to “Parcel No. Two ’ is remanded to the court of appeals of Lorain county for further proceedings in accordance herewith.

Affirmed as to the fifty-four acres; reversed as to the two acres.

Johnson, Hough, Jones and Matthias, JJ., concur.

Marshall, C. J.,

dissenting. I dissent from the conclusions reached by the majority of this court and the judgments relating to each of the tracts of land under controversy. The two propositions will be discussed in the same order as in the majority opinion, and the 54-acre tract will be dealt with first. As a preliminary to that discussion it must be conceded that the majority opinion is right in holding that the transaction is not affected in any way by the alleged releases executed by Henrietta Thiessen •Johnson and Asa Moore. Those conveyances could have no proper relation to this controversy in any event, because the plaintiffs in the lower courts were not claiming as heirs of Henry Moore. Henry Moore died in 1910, and the rights of Wilbur Moore in the deed to the 54-acre tract then became complete as against Henry Moore and for nine years was not questioned in any way. The plaintiffs below claim under the decedent Wilbur Moore and not from the decedent Henry Moore. The consideration clause in the deed to the 54-acre tract has already been recited and need not now be repeated, but it is sufficient to say that no consideration has ever been claimed of greater value than $1. The finding of the court of appeals was that $1 was .in fact paid, and, inasmuch as the record shows that the other grantees in that deed were infants of tender years, it conclusively follows that the dollar was in fact paid by Ida C. Moore, whose interest in the deed was only that of a life tenant, having no other relation to the interest of Wilbur Moore therein. Payment was not made and could not have been made by Wilbur Moore or any of the other minor children. The deed was executed by a father to his own children, without anything having been paid by those children to the father, and the conveyance was made in recognition of the natural and legal duty and obligation of the father toward the children, which fact is shown by the conveyance having been made a.t a time when there was discord between the parents. Upon these undisputed facts must rest the determination of the character of the conveyance of the 54-acre tract. It is claimed that the payment of $1 by Ida C. Moore constituted such a consideration as will give the title of the minors who gave no part of the express consideration the characteristic of non-ancestral property. Although it is well settled by a long line of authorities that testimony is competent to show a different consideration from that expressed, in order to establish the validity of a conveyance and to give it operative effect, it is contended in the majority opinion that such testimony is not competent in order to establish its character or to change the course of descent.

Several eases decided by this court practically support such a proposition, but nowhere do we find any sound reason given for the rule, and surely no valid reason can be given. Upon what principle can it be said that we should look to the character of a conveyance to determine its validity and operative effect, but that we must look to its form to determine its character? In a proceeding to determine the validity of a deed all authorities agree that the court should inquire what was the real transaction, and that form must yield to substance. Upon what principle can it be urged therefore that in determining the character of the conveyance the substance must yield to the form? A mistaken notion seems to prevail that in any conveyance of real estate, whether gift or sale, it is necessary to express some consideration. While this is undoubtedly true as to any executory contract of sale, no sound or sensible reason is perceived for applying the same rule to an executed transaction.

Will anyone contend that a person having capacity to contract may not make a valid gift to some other person to whom he owes no natural duty and for whom he entertains no affection? Various kinds and characters of consideration are recognized in conveyances of real estate, but all such classifications and distinctions are only important where rights of third parties intervene. As between grantor and grantee, and as between donor and donee, we submit that no consideration need be expressed in the deed of conveyance, or even exist, provided the grantor or donor has capacity to contract and is not laboring under any legal disability. Let us suppose that a conveyance should be made in the following form:

“I, John Doe, hereby convey to Richard Roe, in fee simple, Lot No. 1, in Capital Addition to the City of Columbus in Franklin county, Ohio.

“Dated this 1st day of May, 1922.

“(Signed) John Doe.”

(Executed in the presence of two witnesses and properly acknowledged.)

Let it be assumed that John Doe at the time was financially solvent and of sound mind and intended to make an absolute gift to Richard Doe. Would anyone contend that he could afterwards recover the title because no consideration was expressed in the deed? And would anyone contend that the mere fact of one dollar being expressed in the deed, as a consideration, when in fact the dollar was not paid, would give it validity? Would the deed have additional virtue if it expressed the consideration of natural love and affection, and, if questioned, must the donor’s state of mind be established? The battle of Hastings was fought nearly nine hundred years ago, and feudalism never had a foothold in the United States. While we obtain very many of the principles pertaining to the law of real property and conveyancing from the feudal period, we are certainly far enough removed from that period to throw off the yoke of forms and technicalities when they run counter to the substance and real character of the transaction. It is doubtless by reason of unwarranted conclusions drawn from early cases that a general notion prevails that no deed is sufficient in form unless some consideration is therein expressed, and this has given rise to a custom of expressing a consideration of one dollar in all conveyances where the consideration is not solely natural love and affection. Courts have generally lost sight of the distinctions between a real consideration and a nominal one. It is quite clear in the instant case that the one dollar paid was considered to be only a nominal sum and a technical compliance with what the law was supposed to be. The problem in the instant case is one of construction of contract, and in properly construing the contract under consideration we should look to the true nature of the contract and not resort to antiquated technicalities which have pertained to the subject of conveyancing out of deference to customs long since obsolete and almost forgotten. It is impossible to carefully study this transaction without reaching the conclusion that the payment of one dollar was not the moving cause of Henry Moore making this conveyance, but that the real inducement was his legal and natural duty to make proper provision for the care and maintenance of his minor children. It clearly appears from this record that the sum of one dollar was in fact paid, and that it was paid by Ida C. Moore, who was competent to make payment. Nothing was conveyed to her except a life estate, and that life estate is not brought in question in this case. We are only concerned with the interest of Wilbur Moore therein, who was the recipient of a one-fourth interest by that conveyance. He was at that time an infant of tender years. No one would contend seriously that he made the payment, or any part of it, or that he was competent to make a payment of the one dollar, or any part of one dollar. The deed therefore shows on its face that it could not have been a purchase, because Wilbur Moore and his brothers and sisters, to say nothing of the unborn grantees, could not have entered into a legal contract. The deed is only valid on the theory that it was altogether to the advantage of the infant children and that nothing was required to be done by them and no payment required to be made by them. All parties to this controversy agree that the conveyance was a valid one, and it could only be so upon the theory of it being a gift.

While some of the former decisions of this court contain expressions in the opinions not in perfect harmony with the views herein expressed, it will be found in those cases that the expressed consideration was a large sum of money, and that the grantee in each instance was an adult person capable of contracting, and, therefore, capable of paying the valuable consideration. There was the element of mutuality of contract, which involves necessarily the element of competent parties. In the instant case it is apparent that while on the one hand there was no valuable consideration passed as an inducement for the conveyance, there was clearly existent the consideration of blood, natural duty, love and affection. The question whether any title is ancestral or non-ancestral necessarily turns upon the kind and character of the consideration, that is to say, whether it is a good consideration or a valuable one, whether it is nominal or real. Blackstone (2 Blackstone, 297) has drawn the true distinction between a good and a valuable consideration, and that distinction is just as accurate today as it was when written one hundred and fifty years ago: “A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant; and is therefore founded in motives of justice.”

Referring to the tract of 2.37 acres, known as Parcel No. 2, there are two questions for determination. First, was the decree of the court valid wherein this tract was decreed to Ida C. Moore for life with remainder to the children, including Wilbur Moore? Second, can such a decree be successfully attacked collaterally in the manner attempted in this cause?

It is apparently not denied in the majority opinion that if the alimony decree in that case was a valid one the estate thereby created would be not by descent, devise or deed of gift, and therefore distributable under Section 8574, General Code. The majority opinion, however, contends that that alimony decree was not valid. It is unfortunate that such a conclusion has been reached in the case, because it is directly opposed to the judgment of this court in the case of Heflebower v. Heflebower, 102 Ohio St., 674. From the short per curiam opinion in that case we quote the following:

“The defendant in error in this case not only failed to prosecute appeal or error for more than six years, but reinforced the presumption of validity by concurring in that judgment and making the payments of alimony in accordance therewith.
“To all legal intents and purposes that judgment was a' final and valid judgment against the defendant, unreversed and unmodified for a period of more than six years. Pie cannot thereafter in a proceeding in contempt for failure to continue obedience to the order raise the question of original jurisdiction to make the order, based upon what the evidence was in the original hearing on divorce and alimony.
“Clearly as a matter of common sense, common law, and common justice, he ought not, after concurring in the order for six years, be thereafter heard to complain by a collateral attack in a contempt proceeding. If he had any remedy whatsoever, it was by motion to modify the former order.”

The statement of facts in that case, appearing in part on page 676, shows that precisely the same jurisdictional question was raised in that case as in the instant case.

At the time of the entry of the decree in the alimony suit it appears that Henry Moore was not a man of means, and that he did not own much, if any other property than the 2-acre tract. At that time the children were respectively aged four, six, eight and ten years. He clearly owed a duty to care for and maintain them. The court found that he had been guilty of extreme cruelty, and that the wife was entitled to a divorce on that ground, and the marriage relation was therefore dissolved. The court awarded the exclusive custody of the children to the wife, Avith the privilege of visitation. It is evident from the decree that it was the purpose of the court, in making disposition of the 2-acre tract, not to grant it to the wife as alimony but to make provision for the care and maintenance of the children. It may be conceded that in making an order for alimony or for support of children the common pleas court does not exercise general equity powers, but only those powers expressly conferred by statute, or necessarily implied therefrom. Since the majority opinion raises the question of the power of the court to enter the decree relative to the 2-acre tract, we must look to Sections 8033, 8034 and 11987, General Code, to determine whether the court did have power and authority to make the order which was in fact made.

Section 8033 provides that the court shall decide which of the parents shall have the care, custody and control of children, under certain limitations and restrictions therein stated. Section 8034 provides that ‘ The court may order either or both parents to support or help support such children, whoever be their custodian,” etc. Section 11987 is as follows: “The granting of a divorce and dissolution of the marriage in no wise shall affect the legitimacy of children of the parties thereto. The court shall make such order for the disposition, care and maintenance of the children, if any, as is just.”

• The court had jurisdiction over the parties, also over the subject-matter of the proceeding, and also over all the property of the defendant, and if the language of the statutes above referred to and quoted has any potency whatever, and if it be assumed, as we must assume, that the legislature intended that those sections should be given the effect which their language naturally imports, then the conclusion is irresistible that the court did have the power to transfer the title of the 2-acre tract from the father to the children. It was the duty of the court under those statutes to make proper provision for the care and maintenance of the children, and the court hearing the cause could better judge those matters than the courts at the present time, with the meager knowledge of the circumstances of the parties presented by this record. It fairly appears that other than the 2-acre tract Henry Moore, Sr,, had very little if any property which could have been awarded to the children for their care and maintenance. We know of no principle of law which exempts real estate, or makes it of a character different from personal property, so far as concerns the employment of it to make provision for the care and maintenance of children. It would not be questioned that the court could order the defendant to make payment of a certain sum of money to the wife, or any other person, as guardian or trustee for the benefit of the children, if the court had found that the defendant possessed money to which such an order would apply, and no reason is apparent why an order relating to real estate is not equally valid. It would seem from the facts presented and the findings made by the court of appeals that the court which heard the divorce and alimony case made the only order for the care and maintenance of children which it was possible to make under the circumstances.

It is stated in the majority opinion that the order for conveyance of the 2-acre tract to the children had no reference to maintenance and that this fact is shown by a life estate having been reserved. The record does not bear out this contention, because it appears that shortly after this conveyance was made proceedings were instituted in the probate court to sell a portion of the tract for the benefit of the children, and that Henry Moore, Sr., joined therein. It clearly appears, therefore, not only that it was the intention of the court to make provision for maintenance, but that the real estate was in fact so employed. I cannot therefore agree with the majority that the purpose of the order had anything to do with directing the course of succession of the title to the real estate after the death, of the parents. There is nothing in the decree which so indicates, and surely this court is not justified in indulging a far-fetched presumption that the trial court in that ease deliberately intended to do something which would be wholly beyond its jurisdiction. If there was any doubt about the legality or the finality of the order of the court relative to the 2-acre tract, as a provision for the care and maintenance of the minor children, all debate of that question has been foreclosed since the death of Henry Moore. No one other than Henry Moore ever had any right to question it, and since the questions in this case do not arise upon a distribution of the estate of Henry Moore there is no possible privity of interest that would permit any of the parties to this suit.to raise the question. I have no doubt, however, that it was a valid order when made, and that the court had full jurisdiction to make it, and, while the jurisdiction was a continuing one, it continued only during the life of Henry Moore. This attack upon the maintenance order is not a direct attack in an error proceeding, but a collateral attack sought to be made by strangers to the divorce and alimony suit. It is undoubted that a collateral attack can be made in cases where the court has acted without general jurisdiction over the subject-matter, or without having acquired jurisdiction over the parties defendant. Jurisdiction is a term well understood to be the power to hear and determine a cause. If a case is presented which brings the power of the court into action, and the parties have their day in court, the court may make an erroneous order which should be reversed by a superior court in a proper error proceeding; but any order, however erroneous, made by a court having general jurisdiction of the subject-matter, with the parties before it, without any review being sought, becomes proof against collateral attack. I am therefore of the opinion that as to the 54-acre tract the judgment of the court of appeals should be reversed and as to the 2-acre tract its judgment should be affirmed.  