
    Kihlken v. Kihlken et al.
    
      Owner of ancestral lands conveys to another to delay creditors— Agreement to reconvey — Grantor dies — Grantee reconveys to ■widow of former grantor — Brothers and sisters of reconveying grantee have no rights in law or equity in the land.
    
    1. Where an owner of ancestral lands conveys them to another, on a written agreement that he will, upon request, reconvey them, the ancestral character of the land is thereby destroyed; and if a request to reconvey is made, but the grantor dies before it is executed, without issue, but leaving a widow, and brothers and sisters, a conveyance to the widow is a proper execution of the trust, and the brothers and sisters of the deceased grantor have, as heirs, no legal or equitable title to the land.
    2. Where an owner of ancestral lands, to hinder and delay a possible creditor, conveys them to a third person, who after the death of the grantor, without issue, conveys them to his widow, the brothers and sisters of the grantor can not, for this additional reason, maintain an action against her to compel a conveyance of the lands to them. They stand. in the shoes of the grantor and have no rights in law or equity to the lands, but such as could have been asserted by him; and he, by reason of his fraud, had none.
    (Decided November 1, 1898.)
    Error to the Circuit Court of Ottawa county.
    The plaintiffs below, Ferdinand Kihlken et al., as the brothers and sisters and only heirs at law of Henry B. Kihlken, deceased, brought suit against Frederika Kihlken, his widow, to have a conveyance to her of certain described lands, made by John H. Kihlken, set aside, and such other relief as they 'in equity might be entitled to. After a judgment in the common pleas, the defendant appealed to the circuit court, where the case was tried on the pleading’s and evidence, and judgment rendered in favor of the plaintiffs requiring the defendant to convey the land to them, subject to a life estate in herself. Error is prosecuted here to reverse this judgment. At the request of the defendant the court made a finding of the facts and its conclusions of law thereon. The finding of facts is as follows:
    
      First — That the plaintiffs are brothers and sisters and are the only heirs at law of one Henry B. Kihlken, who died intestate on the twenty-eighth day of February, 1894, leaving the defendant his widow.
    
      Second — That on the twenty-first day of May, 1888, said decedent, Henry B. Kihlken, was seized in fee simple of the following described real estate: situated in the township of Carroll, county of Ottawa and state of Ohio, and known as and being the south half of the northeast quarter of section twenty-nine, township seven, range fifteen, containing eighty acres of land more or less, and that said Henry B. Kihlken acquired said real estate by devise from his- father.
    
      ThwcL — That on the twenty-first day of May, 1888, said Henry B. Kihlken executed and delivered to one of the plaintiffs, John H. Kihlken, a deed of the aforesaid real estate, whereby he conveyed the legal title of said real estate to said John H. Kihlken; that as the sole consideration for said conveyance, the said John H. Kihlken and Henry B. Kihlken entered into a contract in writing whereby it was agreed by and between said John H. Kihlken and Henry B. Kihlken that Henry B. Kihlken had that day sold and conveyed to said John H. Kihlken the real estate above described; that the said John H. Kihlken agreed to reconvey said premises to said Henry B. Kihlken at any time on demand made by him in person; that should the said Henry B. Kihlken, die before making such demand, then said agreement to be void and of no effect; that said agreement was executed contemporaneous with said deed, and was a part of the same transaction.
    
      Fov/rth — That on the fifteenth day of January, 1894, the said Henry B. Kihlken duly performed all the conditions of said agreement on his part to be performed and duly demanded of the said John H. Kihlken a reconveyance of the said real estate to him, Henry B., as provided in the said contract, which reconveyance the said John H. was then ready and willing to make, and thereafter and .at all times remained and was ready and willing to make. That on the fifteenth day of January, the said Henry B. and John H. Kihlken agreed that a few days later they would meet in Port Clinton, and have a proper deed of conveyance drawn up, and the said John H. agreed he would then execute the same. And at the time agreed upon the said JohnH., together with his wife, went to Port Clinton for the purpose of meeting his brother Henry B., and for the purpose of executing a deed of conveyance to him in accordance with the terms of the said written contract, and also in accordance with the terms of the verbal arrangement made on the fifteenth day of January, 1894. But the said Henry B. Kihlken did not meet John H. at Port Clinton at the time agreed upon, but was on that day confined at home by sickness, which soon after caused his death, and which occurred before a reconveyance of the said property was made to him by the said John H. Kihlken.
    
      Fifth — That said Henry B. Kihlken, on said day, May 21, 1888, for the purpose of defrauding the said Caroline M. Miller out of her just claim against him as aforesaid, and to hinder and delay her, the said Caroline M. Miller in collecting any judgment that she might recover against him in any bastard proceedings that she might institute against him, made said conveyance of the aforesaid real estate to the said John H. Kihlken and without any other motive or purpose or consideration, and the said John H. Kihlken received said deed to said premises for the purpose of assisting his said brother to defraud said Caroline M. Miller, and to hinder and delay her, the said Caroline M. Miller, in collecting her just claim against the said Henry B. Kihlken.
    
      Sixth — That at the time said conveyance and agreement to reconvey was entered into, the said Henry B. Kihlken was an unmarried man, and that afterwards, to-wit, on the twenty-eighth day of June, 1893, the defendant, Frederika Kihlken, and said Henry B. Kihlken were married and that said marriage relation existed until his death on February 28, 1894.
    
      Seventh — That on or about the eighth day of March, 1894, the said Frederika Kihlken, by her father, Henry Sehwiek, requested the said John H. Kihlken to convey said real estate to her, and that the said John H. Kihlken did on said day convey said real estate to said Frederika Kihlken by a warranty deed and that said conveyance was made by the said John H. Kihlken, in ignorance of the law, and was made by him unadvisedly, improvidently and without due deliberation and under the supposition that he was carrying out the intention of the parties as provided for by the terms of said contract: And that the said Frederika Kihlken never paid to said John H. Kihlken any consideration whatever for said conveyance, and no .consideration for said conveyance has ever passed between the said Frederika E. Kihlken and John H. Kihlken.”
    As a conclusion of law the court found that the conveyance of May 21, 1888, by Henry to John Kihlken, was made in trust for Henry; and that the plaintiffs, as heirs at law of Henry, are entitled to a reconveyance of the property from the defendant, subject to a life estate in herself. The defendant excepted and prosecutes error here for the reversal of the judgment.
    
      O. L York, for plaintiff in error.
    Our position as to the law of this case is this : The conveyance by Henry to John, having’ been made by 'Henry and received by John for tbe purpose of defrauding Caroline M. Miller, gave John tbe absolute legal title as against Henry and all tbe world, except Henry’s creditors and as to them John would be regarded as holding the title in trust, but as to Henry he did not hold the title in trust but held the absolute title, and he had a right to sell it give it away or do with it as he pleased, and Henry was forever estopped from claiming the land and he could not have been heard setting up his own fraud to avoid the conveyance. As between John and Henry, the fraudulent conveyance was an absolute conveyance, and no court would have given relief to Henry in securing a reconveyance of the property, but the court would have left him with his own fraudulent transaction where it found him, and treated John as the absolute owner as though he had paid full consideration for the land; 'and for these reasons, the conveyance of the land to John destroyed its ancestral character as ancestral property, and as John was the owner, and had a right to do with it as he pleased, and having paid nothing for the land, he had a right to give it to plaintiff in error, and as he did give it to her voluntarily, he has not mistaken his legal rights or those of his brothers or sisters, and no one has been deprived of any title in the property which they might have claimed, except John, and while he is a party to the transaction and nothing out, and no fraud has been practiced on him, and his act has been voluntary, there is no foundation in equity for the relief which hq seeks. Brower v. Hunt, 18 Ohio St., 311; Temper v. Barton, 18 Ohio, 418; Burgett v. Burgett, 1 Ohio, 469; Douglas v. Dunlap, 10 Ohio, 162; Brigel v. Starbuck, 34 Ohio St., 285; Johnson v. State, 42 Ohio St., 210; Nickols v. Holdridge, 10 Ohio, 230; White v. Brocaw, 14 Ohio St., 339 ; Barton’s Lessee v. Heirs of Morris, 15 Ohio, 408; Bump on Fraudulent Conveyances, pp. 444d, 447. ,
    The rule is, in order that a mistake may come within the cognizance of a court of equity, it must be shown to be: First, material or the moving cause of the complaining party’s action; second, mutual or shared in by both parties to the transaction ; thwd, unintentional, and fourth, free from negligence. Material — Kerr on Fraud and Mistake, 399; Grimes v. Sanders, 93 U. S., 798 (3 Otto, 55); Dambman v. Schuting, 75 N. Y., 55; Setthemmer v. Killip, 75 N. Y., 282; Story’s Eq. Jur., 151; Segur v. Tingley, 11 Conn., 134; McFerren v. Taylor, 3 Cranch (U. S.), 270; Hubbard v. Hobson, Beecher’s Breese (Ill.), 190. Mutual Mistakes— Ramsey v. Smith, 32 N. J. Eq., 28; Ludington v. Ford, 33 Mich., 123 ; Ins. Co. v. Davis, 131 Mass., 316 ; Iron Co. v. Iron Co., 107 Mass., 290 ; Emery v. Mohler, 69 Ill., 221. Unintentional Mistakes-Dunham v. New Brittain, 55 Conn., 378; Dwight v. Pomeroy, 17 Mass., 303; Betts v. Gunn, 31 Ala., 219; Westbrook v. Harbeson, 2 McCord’s Eq. (S. Car.), 112; Knight v. Bunn, 17 Iredell Eq. (N. Car.), 77; Boughton v. Coffer, 18 Grat. (Va.), 184; Townsend v. Stangroom, 6 Vesey, 328.
    A mistake of law is an erroneous conclusion as to the legal effect of known facts. Birkhauser v. Schmitt, 45 Wis., 316; Hurd v. Hall, 12 Wis., 138. Mowatt v. Wright, 1 Wend., 355.
    It is laid down as a rule that such mistakes, unconnected with a mistake of fact, and where there are no indications of fraud, imposition or undue advantage entering into the agreement, will not be disturbed by a court of equity. Shafer v. Davis, 13 Ill., 396 ; Sibert v. McAvoy, 15 Ill., 106; Nabours v. Cooke, 24 Miss., 44; Storrs v. Barker, 6 Johnson’s Ch., 166 ; Snell v. Ins. Co., 98 U. S., 52; Bentley v. Whitemore, 18 N. J. Eq., 366; U. S. v. Ames, 19 Otto, 35; Bank of U. S. v. Daniels, 12 Peters, 32.
    The doctrine that contracts entered into or acts done under a mistake or ignorance of the law are binding upon the parties cannot be questioned. Ottenheimer v. Cook, 10 Heisk (Tenn.), 309; Rector v. Collins, 46 Ark., 167; Lyon v. Richmond, 2 John Ct., 60 ; Crosier v. Aver, 7 Paige, 137; Thompson v. Thompson, 18 Ohio St., 73.
    A mistake on the part of persons executing an instrument as to its legal effect or that it has an effect different from that intended, cannot avail to avoid that construction of the instrument which the language used and the rules of law as applied thereto require. Shafer v. Davis, 13 Ill., 396; Wood v. Price, 46 Ill., 439; Goltra v. Sannasack, 53 Ill., 456; Paine v. Jones, 75 N. Y., 593 ; Zane v. Cawley, 21 N. J. Eq., 130; Hawralty v. Warren, 18 N. J. Eq., 124; Coley v. Coley, 19 Conn., 114; Leavitt v. Palmer, 3 N. Y., 19; Hunt v. Rousmaniere, 8 Wheaton, 174.
    Where the facts on which a contract under seal is founded are mutually understood by the parties or where they have an opportunity of knowing them, but by a mistake as to the legal effect of them when made, relief will not be extended to the party complaining. McAninch v. Laughlin, 13 Pa. St., 371; Sparks v. Pittman, 51 Miss., 511.
    The evidence to reform an instrument must be clear and satisfactory. Davenport v. Sovil, 6 Ohio St., 459.
    
      Influence obtained by modest pursuasion and argument addressed to the understanding or appeals to the affections, do not constitute undue influence. Barbour v. Waters, 28 S. W. Rep., 785 (Ky.); 1 Western Reserve Law Journal, 57.
    If there was a mistake made as to the legal effect of the deed made by John to the plaintiff in error, there was no mistake as to the legal effect of that instrument on the part of the grantee. All of the Ohio cases where a mistake as to the legal effect of the instrument was corrected proceeded either on the ground of fraud, or that the legal effect was the mistake of both parties. If the terms used fail to carry out the manifest intention of both parties to the instrument it can be corrected, otherwise not. McNaughton v. Partridge, 11 Ohio, 232; Evans v. Strode, 11 Ohio, 480; Ins. Co. v. Boyle, 21 Ohio St., 127; Clayton v. Freet, 10 Ohio St., 545; Horst v. Dague, 34 Ohio St., 376; Ridskoff v. Homan, 28 Ohio St., 520.
    The deed in question is a conveyance, and not a contract for a conveyance or covenant to stand seized. It is executed and not executory. It binds the estate, and not the person. It does not have the effect merely to raise an equity, but, as held in 2 Ohio St., 314, it transfers both the legal and equitable estate. Thompson v. Thompson, 17 Ohio St., 665.
    This property, no one will deny belonged to John Kihlken absolutely, if it was conveyed to him with the intent and he received it with the intent to defraud creditors. Barton v. Morris, 15 Ohio, 408 ; Sexton v. Wheaton, 8 Wheaton, 229; Thompson v. Daugherty, 12 S. & R., 448; Bump on Fraudulent Conveyances, 271.
    
      There is no more objection to a man giving away his property if he able to doit, than there is to his selling it. Creed v. Bank, 1 Ohio St., 1; Lathrop v. Young, 25 Ohio St., 464; Townsend Ex’rs v. Townsend et al., 25 Ohio St., 489 ; Weston v. Weston, 38 Ohio St., 478; 30th Bulletin, page 345 and page 383.
    
      E G. Love and Bartlett cfs Wilson, for defendants in error.
    The deed and contract referred to in the petition between Henry B. Kihlken and John Kihlken had the effect of conveying the title of these lands in trust to John for the benefit of Henry B. Mathews v. Leaman, 24 Ohio St., 615.
    The equitable title to the property therefore remained thereafter in H. B. Kihlken until his death and was subject to the same rules of descent as legal titles. Perry on Trusts, section 357, et seq.; 1st Pomeroy’s Equitable Jurisprudence, section 426; Avery v. Dumfrees, 9 Ohio, 145.
    Hence this equitable estate, being ancestral, descended to the brothers and sisters of H. B. Kihlken subject to the life estate of his wife. Section 4158, Revised Statutes.
    The defendant, Frederika E. Kihlken, therefore has simply had transferred to her the trust held by John Kihlken, and she holds this property with her life estate, but with the legal title for the benefit of plaintiff and the other defendants, heirs of H. B. Kihlken. White v. Brocaw, 14 Ohio St., 339.
    John H. attempted to reconvey this property in accordance with the wish of H. B. Kihlken and supposed that he was carrying out the intention of the parties to the contract, but through a mistake of law conveyed the legal title to the wrong person. Equity will grant relief in such a case. Bispham’s Equity, section 187.
    The allegations of the answer with reference to the so-called claim of Caroline Miller were evidently made by the plaintiff in error for the purpose of bringing this case within the rule laid down in Trimble v. Doty, 16 Ohio St., 119, and Robinson v. Robinson in 17 Ohio St., 480.
    These allegations fall short of making a case that a fraudulent conveyance has been made between the parties and the fraudulent grantor cannot recover. They do not show that any fraud was ever consummated on the Miller girl. It does not appear that she ever had or prosecuted any claim. 3 Waite Ac. & Def., 469.
    The contract and deed between John and H. B. Kihlken created an express trust in John and although, under the holdings in this state, (if as a matter of fact it was a fraudulent trust) H. B. could never have recovered the property from John, still if John was ready to execute the moral obligation imposed upon him by the trust, although he was not legally bound to do so, a court of equity will certainly aid him when he has made a disposition of the property under a mistaken idea of the law and not in accordance with a true interpretation of the terms and objects of the trust.
    No third party could take advantage of the illegality of the consideration between Henry B. and John. For a case that is analogous in principle see Norton v. Blinn, 39 Ohio St., 145.
    It must also be borne in mind that however fraudulent such a deed may be as against creditors, it is good as between the parties, and while it may be true that no remedy is afforded a fraudulent grantor or his heirs to reclaim the property thus conveyed, it is equally true that a fraudulent grantee from a sense of his moral duty, ought to give back the property to him from whom he received it, and his subsequent acts in the execution or attempted execution of the moral duty to restore the property should be favorably considered in equity and no obstacle should be opposed to his desires and efforts in that behalf, by courts exercising equitable jurisdiction. 14 Ohio St., 339; 10 Ohio, 230; 51 Ohio St., 414.
   Minshall, J.

The land in question was devised to Henry Kihlken, now deceased, by his father, and he conveyed it to his brother John in 1888, on a written agreement that it was to be reeonveyed on request. There was no real consideration for the conveyance, but was done for a purpose we will not now consider. Before his death Henry made the request, but died before a reconveyance was made. Thereupon John conveyed the land to Henry’s widow, believing at the time that, under the trust, this was in accordance with his duty. This presents the first aspect of the question arising upon the facts as found. The claim of the plaintiffs below is, that by reason of the fact that the land in question was devised to Henry by his father, and that Henry died without issue, it should descend to them as ancestral property under section 4158, Revised Statutes, notwithstanding the conveyance to John and by John to Henry’s widow. This we think is erroneous. Had John as requested conveyed to Henry just before his death, the immediate title of Henry to the land would have been the deed of John and not the devise of his father. In Brower v. Hunt, 18 Ohio St., 311, after partition had been made between brothers of land devised to them by their father, two of them, Jacob and Thomas, exchanged the lands each had received in the partition by a reciprocal execution of deeds. There was no other consideration received by either for his conveyance than the land received from the other. The court held that by this exchange the lands lost their ancestral character. The reasoning is stated as follows by White, J.: “The title mentioned in the statute is the title under which the intestate immediately holds. The title to these lands came to Thomas by deed of conveyance from Jacob, and the character of the consideration cannot alter the fact and make that a title by devise from the ancestor which was in fact a title by deed from. Jacob. ” It is true that in partition, though effected by deeds, it is held to be different; because partition acts only on the possession and not on the title. Partition does not change the character of the title. Freeman v. Allen, 17 Ohio St., 527; Carter v. Day, ante. We are unable to see why the reasoning in Brower v. Hunt does not apply with equal force to the case before us. Had the conveyance been made by John to Henry in his lifetime as requested, he would have died seized of them as non-ancestral lands under the deed; for whatever previous equity he had would have been merged in the deed; and the lands would have descended to his wife under section 4159, Revised Statutes, as an absolute estate in fee simple. It is said in Stemble v. Martin, 50 Ohio St. 495, 525: “The descent of real estate is controlled by the legal title; and when the legal and equitable title unite in the same person, the latter becomes merged in the former, and does not descend separately. The legal title draws to it the whole estate, and carries it in the same channel of descent as if the equitable estate had never existed.” So in Patterson v. Lampson, 45 Ohio St., 77, the same principle was applied. There a father desiring to make an advancement to his daughter on the eve of her marriage, purchased a tract of land, paying therefor $6,000, and caused the deed to be made directly to her. On her death without children, the land was held to be non-ancestral; because the immediate title under which she held the land was the deed of the person from, whom her father purchased it. Hence John did not mistake his duty under the trust when he conveyed the lands to Henry’s wife; for it was his duty to convey them, if there was any in the premises, to the person that would have inherited them, had the reconveyance been made to Henry.

There is no room for a question of good faith or fraud on the part of the owner of ancestral lands, in changing their character. He has, during life, the power to dispose of them as he pleases; and it is only where he does not, and dies seized of them without issue, that his brothers and sisters take any estate whatever in them. They simply take in the character of heirs and not otherwise. In Indiana it appears that the surviving wife of a deceased husband inherits one-third of his lands in fee simple, subject to the provision, that if she again intermarries, she cannot, during such marriage, alienate them; and if she dies during such subsequent marriage, the lands go to the children of the husband from whom the lands came. And in Nesbitt v. Trindle, 64 Ind., 183, it was held that a widow could change the heritable character of the lands descended to her from her deceased husband, by a deed made without consideration to a third person, who after she had remarried, reconveyed to her. She, as the court observed, had the power, before her remarriage, to dispose of the lands as she pleased; and whether she did so for a consideration or not, was immaterial to the rights of her children by the former husband from whom she derived title; for they, as heirs, liad no vested estate in the lands, while she remained a widow.

The second aspect of the question on the plaintiff’s right to recover, arises upon the fact averred in the answer of the defendant, and found by the court to be true, that the deed made by Henry to his brother John in 1888, was made for the fraudulent purpose of hindering and delaying one Catherine Miller in the collection of any judgment she mig'ht recover against him in a contemplated bastardy proceeding; and was accepted by John to assist him in this purpose. This we think is an additional reason why the plaintiffs below are not entitled to recover. It is too well settled in this state to need the citation of many authorities, that neither a grantor nor his heirs, can have any relief in law or equity for the recovery of lands so conveyed. Trimble v. Doty, 16 Ohio St., 119; Robinson v. Robinson, 17 id., 480; Vanzant v. Davis, 6 Ohio St., 52; Barton v. Morris, 15 Ohio, 408, 431; Tempner v. Barton, 18 id., 418, 422. But it is claimed that these cases do not apply here, because it is not shown or found by the court, that the Miller girl had any valid claim against him, or had in fact commenced any proceeding in bastardy. Conceding- that this is a correct construction of the finding, which is doubtful, as the finding is that the conveyance was made to defraud her out of “her just claim,” still it does not help the plaintiffs below. This very question here raised was., disposed of in Fridge v. Andrews, 51 Ohio St., 405. It was there held that “where an owner, during the pendency of a suit against him, and in view of a possible judgment being rendered adversely to him, conveys his property to another with intent to defeat the satisfaction of such judgment as may be recovered against him in the suit, he cannot, after judgment in such suit in his favor, have the aid of a court of equity to compel the grantee to reconvey to him the property. ’ ’ The fact that no suit is pending at the time of the conveyance cannot vary the application of the principle, where it was made to defeat the satisfaction of any claim that might be established against him. The fact of the conveyance having been made, may have dissuaded the girl from commencing any suit, just as was said in Pride v. Andrews, it may have caused the party to abandon his suit, rather than enter upon the task of pursuing the property.

The case of Norton v. Blinn, 39 Ohio St., 145, much relied on, is not in point. There Norton as agent received from Blinn $500 to be invested in margins on wheat. He invested the money and made $395 and refused to account for the principal and what was made, on the ground that the transaction was an illegal one. The agent was required to account, on the ground that “it is contrary to public policy and good morals, to permit employees, agents or servants to seize or retain the property of their principal, although it may be employed in illegal business and under their control.” In the case before us the defendant below was not acting in the capacity of agent for any one. The conveyance was made to and accepted by her, in her own capacity and rig'ht; and not as a trustee, or agent to transmit the title to some one else. If the application here claimed for Norton v. Blinn were admitted, it would result in overruling all the decisions heretofore made, denying any relief to one, making a conveyance to hinder and delay his creditors.

The defendant below, by leave of the court, amended her answer, adding a prayer that her title to the property be quieted. We think she is entitled to the relief asked. Therefore,

Judgment reversed; and judgment for the widow quieting her title.  