
    Ryan v. O’Connor.
    Where a grantee holds the legal title to lands in trust for the grantor, and without the knowledge of the grantor conveys the lands to another upon the same trust, in an action by the grantor against the heirs of the second grantee to enforce the trust upon which he took the legal title, Held:
    
    1. That the first grantee was not a necessary party.
    2. That the first grantee was a competent witness for the first grantor against the heirs of the second grantee to establish the trust in the property.
    3. Where, after a deposition was taken, new parties were made, and they filed no exceptions to the deposition at any time, and on the trial objected to it only on the ground of incompetency, they waived the objection that they had no notice of the taking of the deposition as required by section 5213, Revised Statutes.
    4. That parol testimony is admissible to show that a deed purporting to have been made for a stated consideration in money, was in fact made without consideration, and that the grantee held the lands in trust for the grantor.
    Error to the District Court of Hamilton County.
    The original action was brought in the superior court of Cincinnati by O’Connor against the heirs of John B. Ryan. The plaintiff alleged that on April 1, 1858, he conveyed the lands described in his petition to one Caleb E. Nourse, and that Nourse at the same time made and gave to O’Con-nor his two promissory notes for seven hundred and fifty dollars each, payable in one and two years, and that O’Con-nor then agreed to furnish the money to pay these notes at their maturity, and that Nourse should- hold the legal title to the lands to indemnify him against his liability on the notes; that O’Connor furnished the money to pay the notes of Nourse at maturity; and that after the. notes were so paid, Nourse held the title to the lands until July 30, 1861, when he conveyed to John B. Ryan; that the conveyance was made to Ryan without the knowledge of O’Connor and was without consideration and was taken by Ryan to hold in trust for O’Connor, and that Ryan died intestate in January, 1871, holding the legal title to the lands. The plaintiff alleged also that the lands had been conveyed to him July 7, 1851, and that ever since that time he had been in possession thereof, and that the conveyance to Nourse and from Nourse to Ryan cast a cloud upon his title, and asked to have his title quieted as against any claim or right of the heirs of Ryan. To this petition various matters of defense were set up, amongst others, that the matters in dispute had been finally determined by an action between the same parties for the same cause; that Ryan held the title to the lands from 1861 to 1871, the time of his death, during which time O’Connor made no claim to the property; that the conveyance from O’Connor to Nourse was made to hinder and delay the creditors of O’Connor from enforcing the collection of their just claims against him. The conveyance from O’Connor to Nourse and from Nourse to Ryan were admitted to have been made as stated in the petition.
    Upon the trial in the superior court the deposition of Nourse was offered and read in evidence. The court, however, not finding that the plaintiff had been in possession of the lands as stated in his petition, gave judgment for the defendants!
    This judgment was reversed by the district court. The heirs of Ryan bring this proceeding to reverse the judgment of the district court.
    
      Stallo, Kittredge & Willy, for plaintiffs in error.
    1. The deposition of Nourse was incompetent, for that when taken some of the defendants had not been served with process. Rev. Stats., §§ 5266, 5278.
    2. Nourse was incompetent as a witness. He was a necessary party. Rev. Stats., § 5242; Alexander v. Hoffman, 70 Ill., 115 ; Louis v. Baston, 50 Ala., 470.
    3. Parol evidence was not competent to prove the trust set up by O’Connor. Stat. Frauds, ,§ 4198; McLain v. McLain, 57 Iowa, 167; Metcalf v. Brandon, 58 Miss., 841; Porter v. Mayfield, 9 Harris, 263 ; Sturtevant v. Sturtevant, 29 N. Y., 39; Fairchild v. Rasdall, 9 Wis., 379; Taylor v. Sayles, 57 N. H., 465. And when the answer denies a trust, it is not necessary to plead the statute of frauds. Metcalf v. Brandon, supra; Whyte v. Arthur, 17 N. J. Eq., 521; Suman v. Springate, 67 Ind., 115; Matthews v. Leaman, 24 Ohio St., 615; Watson v. Erb, 33 Id., 35; Wheeler v. Reynolds, 66 N. Y., 227; Rogers v. Simmons, 55 Id.; 76; 2 Wharton on Ev., § 707; Newton v. Taylor, 32 Ohio St., 399, and see Nelson v. Worrall, 20 Iowa, 469; Collier v. Collier, 30 Ind., 32.
    
      J. J. Grlidden, with whom were T. A. O'Connor and Taft & Lloyd, for defendant in error.
    1. Parol evidence was admissible to prove the trust. 2 Ohio St., 336; 16 Id., 440; 24 Id., 615 ; Woods v. Dille, 11 Ohio, 456; Minns v. Morse, 15 Id., 571; Bickett v. White, 1 Sup. Ct. Rep., 170; Matthews v. Leaman, 24 Ohio St., 615.
    2. As to the incompetency of the deposition of Nourse. No exceptions were filed before trial. Rev. Stats., §§ 5284, 5285, 5286. After trial the objection made is too late. Ash v. Marlow, 20 Ohio, 119; Cowan v. Ladd, 2 Ohio St., 322.
    3. Nourse was competent as a witness. Matthews v. Leaman, 24 Ohio St., 615. He was not a necessary party and hence section 5442 Rev. Stat., has no application.
   McCauley, J.

The petition in the original action stated facts which entitled the plaintiff to relief, quieting his title against any claim or estate of the defendants in the lands, and also a state of fact upon which he was entitled to a decree to enforce the trust upon which the defendants held the lands. No objection was made to the petition in this form, and no action taken to require the plaintiff to elect which form of relief he would pursue.

The superior court seems to have treated the action as one to quiet title, and finding that possession was not shown in the plaintiff, gave judgment for the defendants. Treating the case as one to quiet title, the judgment was clearly correct. But, upon all that transpired on the trial, if the plaintiff was entitled to a decree enforcing the trust in the lands, the court erred in refusing t,hat relief. The first question encountered in this aspect of the case is, whether or not the testimony of Nourse was admissible; He was not a party, and therefore was under no disability to testify under Section 5242, Revised Statutes. That section provides, “ That a party shall not testify where the adverse party * * * claims or defends as heir * * * of a deceased person.” The construction given to this provision, in Hubbell v. Hubbell, 22 Ohio St., 208, is “that both the part}' disqualified and the adverse party referred to must be parties to the record, and adversely interested in the determination of the issues of fact.”

Since the construction given to this statute in Hubbell v. Hubbell, supra, it has been so amended that these words have been added to it: “ When a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied.” Does this provision require that the testimony of Nourse should be excluded? If Nourse was a necessary party, although not in fact a party, it is possible that this provision would exclude his testimony. He held the lands in trust for O’Connor, and without the knowledge of O'Con-nor conveyed them to Ryan without consideration and upon the understanding that Ryan would convey to O’Connor on request. These transactions placed Ryan in the same relation to O’Connor as that occupied by Nourse before the transfer.

Whatever trust O’Connor could have enforced against Nourse, he could enforce after the transfer against Ryan or against his heirs. The transfer from Nourse to Ryan is admitted in the answers of the defendants, — O’Connor therefore seeking to have the trust enforced by which the lands should have been conveyed to him, could have no'relief touching the title to the lands, or by way of the enforcement of the trust against Nourse. He was, therefore, not a necessary party to the action, and the reason and spirit of the statute which excludes the testimony of a party when the adverse party claims or defends as heir of a deceased person, should not apply so as to exclude his testimony.

After the deposition of Nourse had been taken, two of the heirs of Ryan were made parties, but filed no exception to the deposition at any time. The only objection was made on the trial to the competency of the evidence. If exceptions to the deposition had been filed as provided by Section 5284, Revised Statutes, the deposition could not have been read against the parties.brought into the case after the deposition was taken. No exceptions being filed, the new parties could make only such objections to the deposition as they could have made if the witness had been testifying in court. By failing to file exceptions they waived all other objections.

It is urged that though the testimony of Nourse is admissible, it cannot be used to show that a deed purporting to have been made for a stated consideration in money was, in fact, without consideration, and that the grantee held the property in trust for another.' That parol evidence for this purpose is admissible has been held in Fleming v. Donahoe, 5 Ohio, 255 ; Stall v. Cincinnati, 16 Ohio St., 169; Matthews v. Leaman, 24 Id., 615; Miller v. Stokely, 5 Id., 194.

The testimony of Nourse fulfills the requirements of the rule stated in Stall v. Cincinnati, supra, that such evidence must be clear, certain and conclusive not only of the existence of the trust, but of its terms and conditions. The defense was urged also, in the court below, that O’Connor having conveyed the property to Nourse, to hinder and delay his creditors, the law would give him no aid to recover it. He conveyed the property to Nourse as indemnity against the liability of Nourse on two promissory notes of seven hundred and fifty dollars each, that Nourse gave him at the time of the transfer. What O’Connor did with the notes does not clearly appear, but he seems to have made use of them to raise money for some purpose. Nourse testifies that the notes had been negotiated, but he does not know to whom. This course of dealing with the land and with the money raised upon it as security was quite consistent with a purpose to deal fairly with his creditors; for anything that appears he may have paid the money thus realized immediately to his creditors. If his purpose was to place his property beyond the reach of his creditors, the law would leave it where he placed it; but such purpose, or acts from which such conclusion would necessarily follow, should have been proved to defeat his right to reclaim the property from those who hold it by conveyance without consideration.

Judgment affirmed.  