
    Kukla et al. v. Gonski et al. Gonski et al. v. Kukla et al.
    (Decided June 22, 1931.)
    
      Mr. W. E. Wagers and Mr. S. S. Burts field, for Louis Kukla.
    
      Messrs. Geer é Lane, for Annie Kukla Gonski
   Richards, J.

Two actions were commenced in the court of common pleas by different plaintiffs asserting rights which they claimed to have in three pieces of real estate situated in the city of Toledo. The plaintiffs in each case set up the fact that Anna Kukla was the owner in 1920 of this real estate, and that she then conveyed the same to her daughter, Annie Kukla, who subsequently married and is now known as Annie Kukla Gonski. Anna Kukla, the mother, died on March 15, 1930, intestate.

The plaintiffs in the first action sought to have the conveyance made by Anna Kukla to her daughter set aside, and asked for an accounting of rents and profits, and for a partition of the real estate, and injunction. All of the heirs of Anna Kukla, deceased, were made parties to the action.

In the second action Annie Kukla Gonski averred that she was the owner in actual possession, and had the right to the possession, of the same property, and sought to have her title quieted. She, however, also averred that Louis Kukla was wrongfully in possession of a portion of the property, and had been so in possession for 56 months, and that the reasonable rental value of the use and occupation of the portion which he occupied was $1,680. She averred that none of the defendants had any right or title in the property, and prayed judgment against Louis Kukla for $1,680; and that the defendants be required to set forth any claim which they might have or be forever barred; that their claim be declared null and void and her title quieted; and that they be required to surrender possession to the plaintiff and be enjoined from interfering with her possession. She further asked for a permanent injunction.

On the motion of Louis Kukla and Stanislaus Kukla, the court of common pleas ordered that the actions be consolidated, and ordered that the consolidated case should be tried to a jury. Trial was thereupon had to a jury, which returned a verdict finding that the title to the properties was held by Annie Kukla Gonski in trust for the benefit of herself and three brothers, in equal parts, each being entitled to one-fourth. The court overruled a motion for a new trial, filed by Annie Kukla Gonski, and ordered and adjudged that the property was held in trust by her for the benefit of herself and her three brothers, and reformed the deed so as to invest her with title to the undivided one-fourth part of the property, and each of the brothers with a one-fourth part, and ordered partition of the property.

In due time Annie Kukla Gonski filed an appeal bond and also prosecuted error to this court.

A motion has been made by Louis Kukla to dismiss the appeal, claiming that the consolidated action is not one in chancery and not appealable.

The same real estate is involved in both actions. • In the first action the plaintiffs sought to have a deed executed by their mother for said real estate set aside or reformed, and demanded that they have partition of the property. This was manifestly an action in chancery. The second action, brought on the following day by Annie Kukla Gonski, sought to have her title quieted to the same property. That also would be an action in chancery and appealable, and the effort to quiet her title was the main object of her action. But, in the second action, although she averred that she owned, and was in actual possession, and had the right to the possession, of the property, she further averred that Louis Kukla was wrongfully in possession of a part, and asked judgment against him for the value of the use and occupation of that part so occupied by him. This demand for a judgment by reason of the occupancy of a part of one of the tracts of land was a mere incident to her main action in which she sought to have her title quieted to the several tracts. On the trial of the case it developed that the part which Louis Kukla occupied was the lower apartment in a duplex situated on one of the properties in controversy.

It is urged in support of the motion to dismiss the appeal that the averments by which Annie Kukla Gonski seeks to recover the value of the use and occupation transform her action to quiet title into an action at law, and that, therefore, notwithstanding the consolidation of the cases, appeal will not lie. We cannot assent to that contention, but hold that the consolidated action is appealable. It must be remembered that the provision granting a right of appeal in chancery cases should be liberally construed. Article TV", Section 6, Constitution. By the consolidation we may fairly treat the plaintiff in the second action, Annie Kukla Gonski, as a defendant in the first action, asking to have her title quieted to the entire premises by virtue of the deed of conveyance made to her by her mother. It is true that her demand to recover the value of the use and occupation of the part of the premises occupied by one of the cotenants would be, standing alone, the assertion of a right not sounding in chancery; but as the plaintiff's in partition are seeking affirmative equitable relief as to the same property, and as the two actions are consolidated, we must treat the entire matter as a proceeding in chancery. This conclusion is required by the holding of the Supreme Court in W. C. McBride, Inc., v. Murphy, 111 Ohio St., 443, 145 N. E., 855. A similar holding was made in Kiriakis v. Fountas, 109 Ohio St., 553, 143 N. E., 129. While the principle is not stated in the syllabus in the latter case, it clearly appears from the facts stated in the opinion of the court. In that case the plaintiff! prayed for a cancellation of a promissory note for $1,500, an injunction, and the recovery of a judgment for $251.10. The cross-petition alleged the existence of a partnership, asked for an accounting, and for the reformation of a bill of sale; and the court, on page 558 of 109 Ohio State, 143 N. E., 129, 130, uses the following language:

“Where a court of equity obtains jurisdiction of an action, it will retain it and administer full relief, both legal and equitable, so far as it pertains to the same transactions or subject-matter. * * *
Under such circumstances a court of equity may go on to complete adjudication, even establishing legal rights and granting legal remedies which would otherwise be beyond the scope of its authority.”

To the same effect is the decision in Lust v. Farmers’ Bank & Savings Co., 114 Ohio St., 312, 151 N. E., 189. That was >an action for the recovery of possession of real estate, which would be an action at law, but an answer was filed which contained a general denial and also a second and third defense constituting a cause of action for quieting title of the disputed tract, and it was held that the action was in chancery and appealable.

For the reasons given the motion to dismiss the appeal will be overruled. The case being one which was appealable, and having been appealed, the proceedings in error will be dismissed. This dismissal also results because of the failure to make Michael Kukla, a brother, who had been awarded an undivided one-fourth of the land by decree of the common pleas court, a party to the proceeding in error, and no application is made to make new parties.

We come then to the merits of the case made on appeal. The important facts, in brief, are that Anna Kukla, owning several pieces of land, and residing with her daughter, Annie Kukla, then unmarried, and two sons, desired to make disposition of her property, as she said, to avoid trouble and work. The daughter seems to have cared for her mother for a considerable period of time following the death of her father. It is claimed on behalf of Louis Kukla, a brother, that his sister Annie agreed at the time the deed was made to hold the property in trust for herself and three brothers, but the evidence fails to sustain that claim. Annie Kukla G-onski testifies that she never heard of any such claim at or before the time the deed was made, nor until the death of her mother, which was some nine years thereafter. The deed was written by a reputable lawyer of this bar and he testified, when called by Louis Kukla, that the mother told him she wanted to deed all of the property to Annie, as “I don’t want to be bothered with the property.” He had some further conversation with her along this line, in which she expressed great confidence in Annie, and, on being inquired of as to whether the daughter was present at the conversation, the witness stated:

“It is my firm recollection that I talked to Mrs. Kukla in the room alone at the time. That is, before the deed was signed I had this conversation as I have related, with her, alone.”

By all of the testimony in the case, the deed was made in exactly the form that the grantor desired and intended, and any statement which she made in the absence of her daughter could by no reasonable intendment result in ingrafting a trust on the land. It has always been held that parol evidence, to in-graft an express trust in land upon a warranty deed absolute in form, must clearly and convincingly show the agreement of trust made contemporaneously with the deed. Russell v. Bruer, 64 Ohio St., 1, 59 N. E., 740; Boughman v. Boughman, 69 Ohio St., 273, 69 N. E., 430. As such a trust could only be shown by the high degree of proof indicated, it could, of course, not exist where the grantee had no knowledge that a trust was sought to be imposed or was even contemplated.

A decree of this court will be entered quieting the title to the land in question in favor of Annie Kukla Gonski, dismissing the claim for reformation of the deed and for partition, and dismissing the claim of Annie Kukla Gonski to recover for use and occupation.

Decree accordingly.

Lloyd, P. J., concurs.

Williams, J.,

concurs in the opinion in so far as it relates to the appeal case.  