
    DETERMINATION AS TO WHETHER TITLEJWAS ACQUIRED BY PURCHASE OR DESCENT.
    Common Pleas Court of Licking County.
    Arrel Gilford Minor v. George N. Shipley et al.
    
    Decided January Term, 1922.
    
      Action to Quiet Title — Proceeds of Farm Bequeathed to Daughter and a Benevolent Society — Daughter Remains in Exclusive Enjoyment for More Than Twenty-one Tears — Suit hy the Society for a Receiver — Daughter Claims Title for Non-User — Ineffective Decree in Her Favor — Attempt hy Society to Sell Notwithstanding Lack of Authority — Question of Forfeiture — Effect of Quit Claim Deed —Character of Present Title in the Land.
    
    A' testator bequeathed a portion of the proceeds of his farm to his daughter and the remainder to the. Preachers Aid .Society, the proceeds to all go to the society at the-death of the daughter but without power to sell the farm. After twenty-nine years of exclusive enjoyment of the farm by the daughter, the society brought suit for a receiver and its share of the proceeds. The daughter claimed title had reverted to her by non-user, and she was given judgment with costs. A few days prior thereto she had obtained a quit claim deed from the society for a consideration of $500. Twenty-seven years later she died in possession of the farm and without issue. If her title was acquired by descent, her husband takes a life estate; if by purchase, a title in fee simple. Held:
    
    1. It was impossible that the society could, during the life time of the daughter, have forfeited by non-user its vested remainder which did not ripen until the death of the daughter. The decree obtained by her was therefore without effect.
    2. The attempt by the society to sell its interest in the farm did not work a forfeiture of its rights therein, in view of its want of authority to consúmate a sale; but its quit claim deed became effective at the time of its execution as an estoppel against the society claiming its vested remainder at the death of the daughter, and title ripened in the daughter by reason of her holding the land adversely to the society for more than twenty-one years after execution of the quit claim deed. The daughter’s title was therefore a title by purchase.
    
      
      E. 8. Randolph, for plaintiff.
    
      Swartz, McNamar & G-launer and Flory & Flory, for defendants .
    
      
       Affirmed by the Court of Appeals.
    
   Moore, J. (Orally).

The plaintiff in this ease seeks to have his title quieted in certain lands situated in Hanover township, Licking county, Ohio.

Plaintiff claims in his petition that he is the owner in fee simple of said real estate. There are a number of defendants, some of whom have filed answers. The facts upon which plaintiff’s title and possession are based are as follows:

John Enyart, who died in the year 1853, was, at the time of his death, the owner in fee simple of the lands in controversy. The said Enyart died testate and his will was duly probated in the Probate Court, Licking county, Ohio. Afterwards, in 1879, the said will was re-probated by a proceeding in this court, the original record of the probate court having been destroyed by fire in 1873. There are three items in this will which read as follows:

1 ‘ Item 2. I give to my wife, Anna, all the proceeds of my farm on which I now reside in Licking county, Ohio, until my daughter Maria shall arrive at the age of eighteen years. ’ ’
“Item 3. When my said daughter shall arrive at the age of eighteen years then she shall have one-fourth of the proceeds of said farm, my wife one-fourth so long as she remains my widow, and the remainder shall go to the Preachers’ Aid Society of the Methodist Protestant Church and the Muskingum Annual Conference. ’ ’
‘ ‘ Item 4. At the death of my said daughter I give the whole of said proceeds of said farm to the Preachers’ Aid Society, but said Society are not to sell the farm. ”

In 1864 Anna Enyart, the wife of said John Enyart, died. On April 11, 1893, the Preachers’ Aid Society filed a petition in this court against Maria Minor, the said daughter mentioned in said will. This petition, after setting forth the provisions of the will of John Enyart, alleges that plaintiff is entitled to a part of the proceeds of the farm; that plaintiff is a tenant in common with defendant; that the parties are unable to agree upon the proper management and repair of the farm, and alleges other, perhaps immaterial, allegations. A copy of the Enyart will is attached to the petition. The prayer of this petition is as follows:

“Wherefore said plaintiff prays that a receiver may be appointed to take charge of said farm, put it iñ proper repair, rent and manage the same, and divide the proceeds of said farm between the said' plaintiff and the said defendant according to the terms of said will, and for all other relief to which the said plaintiff is in equity entitled.”

Defendant filed an amended answer to this petition, in which she sets up five defenses. One defense is, in effect, a general denial. Three of the defenses plead, respectively, the twenty-one-year, the six-year and four-year statutes of limitation. This answer also contains this allegation:

‘‘And for a second defense this defendant represents that she was’at the time of the death of the said John Enyart, the testator, and still is, his only heir at law, and the sole owner of the real estate of which he died seized set out and described in plaintiff’s petition, and she is in the exclusive possession and enjoyment thereof and has been ever since the death of her mother, the said Anna Enyart, on the 10th day of April, 1864, claiming title thereto in fee simple and in her own right, and, for more than twenty-one years next preceding the commencement of this action, she has been such owner in the open, notorious and exclusive possession of said real estate.”

This answer asks no affirmative relief. The final journal entry reads as follows:

“This cause of action came on this day to be heard, was submitted to the court upon the pleadings and the evidence and on consideration thereof the court finds on the issues joined for the defendant. It is therefor considered by the court that the defendant, Maria E. Minor, go hence with the day and recover from the plaintiff, the Preachers’ Aid Society of the Methodist Protestant Church of the Muskingum Annual Conference, her costs herein expended, and that the plaintiff pay its own costs, and in default of such payment that execution issue therefor. ”

The date of this entry is September 27, 1894.

On September 24, 1894, three days before the date of this entry, the Preachers’ Aid Society executed and delivered a quit claim deed to Maria Minor, the defendant, releasing, or attempting to release, the interest of said society in said real estate. This deed recites a consideration of $550. It is recorded in Volume 157, page 571 of the deed records of this county.

Maria Minor died in 1921, leaving a husband, the plaintiff herein, and no children.

The sole question to be determined in this ease is whether the said Maria Minor acquired title to said real estate by descent or by purchase. If by descent, the plaintiff takes a life estate in the land. If by purchase, he takes a fee simple.

It seems to be conceded by all the counsel in this case that the will of John Enyart passed title, or an interest of some kind, in this real estate, to the Preachers’ Aid Society.

Counsel for one of the defendants urges that the decree of the court was an adjudication that Maria Minor owned the real estate in fee simple as heir at law of John Enyart; that by this adjudication the title became a title by descent.

Counsel for other defendants urge that the limitation contained in John Enyart’s will against the sale of the real estate was valid, and thereby the quit claim deed was a mere nullity; that prior to the date of the deed, and prior to the decree of the court the Preachers’ Aid Society had forfeited their title by non-user, and the same had reverted to the heir at law of John Enyart, and her title thereby became a title by descent.

Manifestly, this contention can not be sustained for several reasons, among which are: By the terms of the will the Preachers’ Aid Society did not come into possession of all the proceeds of this farm, in other words, of the remainder, until the death of the daughter, which occurred some twenty-eight years after the time when it is claimed the title reverted to her by non-user. The mere statement of the proposition that a vested remainder, to which there is no risrht of possession until the happening of a specified event, is forfeited by non-user before such event takes place, is sufficient to dispose of this claim. Forfeitures are not favored in law any more than in equity, but must be strictly construed.

The entire proceeds of this farm are given to the Preachers’ Aid Society generally, by words which, in a will, pass a fee simple title in the land itself. There is no limitation to any particular use imposed upon the Preachers’ Aid Society. The limitation, if any, would have to be implied from the character of the society itself. To work a forfeiture in a ease of his kind there must be clear proof of a failure of the use as contained in the grant. Under the construction claimed, every abandoned church property would revert to the original grantor, or his heirs. There is no difference in the tenure of this property and all other property in Ohio, held by a corporation not for profit, except the possible limitation that said society shall 'never sell the farm. Even assuming, as the name indicates, and concerning which there is no proof before the court, that this society is a charitable society, and a part, of the system and management of the Methodist Protestant Church, the statutes of Ohio provide for the sale of abandoned church property, and such property does not revert, unless the grant to such church clearly expresses or clearly implies such reversion. The mere fact that the society attempted a sale, which it had no right to consummate, could not in itself cause a reversion, unless the grant, or instrument by which it took title, so provided.

As to the matter of the adjudication in the case of the Preachers’ Aid Society against Maria Minor: this was an action for the appointment of a receiver and an accounting.

The doctrine of res adjudhaia in Ohio, is, briefly, that a judgment is conclusive not only as to the matters actually determined but also as to every other matter which might have been litigated and decided upon the issues made in the case, and upon which it was tried. Roby v. Rainsberger, 27 O. S., 674.

What were the issues made in this ease, and upon which it was tried? This court is of the opinion that the issue of whether or not Maria Minor was the owner in fee simple, as heir at law of her father, was not made, nor tried in this ease. An examination of the pleadings of the case clearly settle this, in the judgment of this court. If Maria Minor has filed a cross petition in the case against the plaintiff and had asked the court to quiet her title for the reason that she held as heir, she could have made this fact an issue, possibly, but under the pleadings as filed, and upon which the case was tried, no such issue was made, that it is thereby res adjuddcata. So far as this adjudication alone goes, the matter of the title of this farm could have been litigated at the time of the death of Maria Minor in 1921. The only issue that could have been tried upon the pleadings, as filed, was the right of the Preachers’ Aid Society to an accounting.

This court is of the opinion that the limitation in a grant to a charitable institution upon the right to sell'is valid; that the attempted sale did not work a forfeiture; that the adjudication in the law suit between the Preachers’ Aid Society and Maria Minor did not adjudicate the question of the ownership of the land, and that the same could not have been adjudicated upon the issues raised by the pleadings in the case. i The quit claim deed from the society to Maria Minor did not convey title, but it became effective at the time of its execution as an estoppel against the society claiming its vested remainder at the death of the grantee; but this, in the judgment of the court did not, in itself, make the title revert to Maria Minor. The grantee held the land ’ continuously for a period of some twenty-eight years after the execution of this deed, and the deed is conclusive evidence of her holding the same adversely to the society, and the title of Maria Minor thereby ripened into a perfect legal title in twenty-one years from the date of the execution of the deed, and was a title by purchase.

Judgment for plaintiff; title may be quieted against the defendants.-

Supplemental Opinion.

The attention of the court has been called in this case to the third defense in the answer in the case of the Preachers’ Aid Society v. Maria Minor. It is claimed that this defense raises the issue as to whether or not Maria Minor was the heir at law of John Enyart and held title as such heir at law to the real estate in question. This defense reads as follows:

Third Defense: And for a third defense this defendant says the plaintiff’s action is barred by the statute of limitations of twenty-one years, as hereinbefore stated in her second defense^ and she prays judgment accordingly, and that she be quieted in her said title.

Applying the principle of res ad judicata, as stated by the court in its former opinion, the court is of the opinion that this defense does not raise the issue of whether or not Maria Minor was the owner in fee simple as the heir of her father, but that it only raises the issue of whether or not plaintiff’s action is barred by the statute of limitation, and the case was therefore tried and litigated upon issues from which, as made, it could not have been determined whether or not Maria Minor was the owner of this land in fee simple as the heir of her father.

There may be a judgment as heretofore indicated.

Murray Seasongood, Robert P. Goldman, Charles PL. Stephens, Jr., counsel for plaintiff.

Pogue, Hoffheimer & Pogue, Ernst, Cassatt £&i Cottle, Bolle, Taylor, O’Donnell & Geisler, L. A. Lreton, Oscar W. Kuhn, Waite, Schindel <& Bayless, Frost & Jacobs, Hunt, Bennett & Utter, Mallon & Yordenberg, Harmon, Colston, Goldsmith . Hoadly, C. B. Wilby, et al, counsel for defendants.  