
    Henry A. Mathews and Wife v. Thomas Leaman and Wife et al.
    1. An objection, on error, that a deed was executed upon an illegal consideration, where the bill of exceptions merely shows that evidence was given on the trial tending to p"ove such consideration, can not avail, it not appearing that- the illegality of the consideration was proved. Quaere — Whether such matter to be available by way of defense, ought not to be pleaded.
    2. In this state, notwithstanding the statute of frauds, it is competent to establish, by parol evidence, that a deed of conveyance, absolute in form, was executed upon the consideration that the property conveyed was to be held in trust for the grantor, and reconveyed on demand.
    Error to the District Court of Hamilton county.
    The original petition was filed February 25, 1869, by Henry A. Mathews, against Thomas Leaman and Matilda his wife, and Jacob Schadel, to enforce the forfeiture of a lease of the premises in controversy, and to recover possession of the premises.
    The petition states that on the 10th day of October, 1866, Thomas Leaman, who was then the owner of the premises, and Matilda his wife, demised the same to Jacob Schadel for the term of five years, on condition that the lessee would perform the covenants of the lease; that, by the terms of the lease, Schadel was to pay the stipulated rent quarterly to the lessor, Thomas, or his assigns, and was not to assign the term without the consent of the lessor or his assigns; that the plaintiff acquired title to the premises as the assignee of Anna K. Bochman, who was the assignee of Thomas Leaman; and that Schadel had broken his covenants by the non-payment of rent and by the assignment of the term to Matilda,.wife of Thomas Leaman, without the consent of the assignee.
    The petition also states that Matilda entered into and holds possession of the premises.
    Thomas and Matilda Leaman and Schadel file separate answers, in which they deny the title set up by the plaintiff'.
    Thomas accompanies his answer with the following cross-petition :
    
      
      “ The defendant, Thomas Leaman, by way of cross-petition against said plaintiff and various other persons hereinafter named, whom he desires to be made parties to this suit, says, that on or about the 7th day of August, A. n. 1867, while this defendant was the owner in fee simple of said real estate described in said petition of plaintiff, this defendant executed and delivered a deed for the same to a person calling herself Anna K. Boehman, but whose real name was then Anna K. Brenning, and who was then-the Wife of John Brenning, but living separately from him ; that said deed purported to be for a consideration of $700, but was in fact without any consideration whatever; that nothing whatever was paid for said deed; that the same was executed and delivered by this defendant to said Anna K. Boehman, apparently and upon its face as an absolute deed, yet it was then and afterward understood to be, and was in fact, in trust for and to secure the same for this defendant, and for no other purpose, and to be reconveyed to this defendant on demand; that said deed was on the same day put to record, but this defendant collected the rents of said real estate and exei’cised ownership and control over the same with the knowledge of, and without any objection from said Anna N. Boehman, until on or about the — day of May, 1868, when said Anna K. Boehman combined and confederated with her mother, one Dorothea Boehman, and her father, one George Boehman, to cheat and defraud this defendant and deprive him of the use and benefit of said real estate; and they assumed and claimed that the real name of said Dorothea Boehman, wife of said George Boehman, and mother of said Anna K. Boehman, was Anna K. Boehman; and that said deed had been executed and delivered to her, the wife of said George Boehman, and not to said Anna K. Boehman, wife of John Brenning; and said wife of said George Boehman, without the consent and against the will and protestations of this defendant, for a time thereafter assumed control of said real estate, and she and her said daughter, against the will of this defendant, for a time collected some of the rents of said real estate, up to and until October 8, 1868, since which time this defendant has been receiving the rents thereof, and as ever before, claims the right to do so; that said deed was never executed or delivered to said wife of said George Bochman; that she never paid any consideration therefor; that neither she nor her daughter ever became the absolute owner of said real estate, or any part thereof; nor did said George Bochman ever lawfully accpfire any interest in, or title to, said real estate; that on the 8th day of December, a. d. 1868, said wife of said John Brenning, by the decree of this court, was divorced from said John Brenning, and on January 7,1869, she was married to said plaintiff and is now his wife; that by the further combination of said George Bochman, and wife and daughter, to defraud this defendant, and by confederating also with said plaintiff for that purpose, said George Bochman and wife, on the 28th day of January, A. d. 1869, pretended to convey said real estate to said plaintiff', by deed of that date, by them executed and since put to record, for an expressed consideration of one dollar and other unnamed considerations and by covenants of general warranty; but this defendant charges and avers, that said last-named deed was wholly without consideration, and that said plaintiff well knew at the time of the making and delivery thereof, that said grantor had no title thereto, nor right to convey the same, and was fully advised in the premises.”
    The cross-petition also sets forth that a reconveyance had been demanded before the marriage of the grantee to Mathews, as well as since that time; that she expressed at first a willingness to reconvey, but now refuses to do so.
    George Bochman and Dorothea, his wife, and Anna K. Mathews, wife of the plaintiff, are made parties, and relief is prayed against them and the plaintiff'.
    Mathews and wife answer separately. Her answer is a mere denial of the allegations of the cross-petition.
    His answer states: “First. That it is not true that said Lea-man conveyed to the wife of the plaintiff, then named Anna K. Brenning, the premises described in the petition, without consideration and in trust for the benefit of said Leaman, as alleged in said cross-petition; and that it is not true that the plaintiff had any knowledge of such pretended trust.
    
      “ Second,. For a second answer to said cross-petition, the plaintiff says, that on the 28th day of January, 1869, for a good and valuable consideration, by their deed in fee simple and of general warranty, Anna E. Bochman and George Bochmau, her husband, conveyed said premises to the plaintiff, and that he is now the owner of the same.”
    George Bochman and wife file a joint answer, she answering by the name of Anna K. Bochman.
    The answer is as follows :
    “ First. The defendants, George Bochman and Anna E. Bochman, his wife, now come and for answer to the cross-petition of Thomas Leaman, say, that said Thomas Lea-man, on the 7th day of August, 1867, conveyed, by his deed in fee simple and of general warranty, to said Anna E. Bochman, for a good and sufficient consideration, the premises described in the petition; and that on the 28th day of January, 18.69, for a good and valuable consideration, the said George Bochman and Anna E. Bochman, his wife, conveyed said premises to the plaintiff.
    “ Second. For a second answer, the said defendants deny every allegation contained in said cross-petition.”
    On the trial of the cause in the District Court, the original petition was dismissed. The finding on the cross-petition is as follows : “And in further consideration of the premises as to said cross-petition, the court find for said Thomas Leaman, the plaintiff therein, and that the facts stated in said cross-petition are true; that said Thomas Leaman conveyed'the real estate in said petition described, by deed to said defendant, Anna E. Bochman, who was then known also by the name of Anna E. Brenning, and Anna E. Brenninger, and who has since become, and now is, the wife of.said plaintiff, Henry A. Mathews; that said deed was wholly without consideration, and in trust to be reconveyed by her to said Thomas Leaman, on demand; that a deed of reconveyance has been demanded from her before her marriage with said plaintiff, and from her and said plaintiff since their marriage, but they have failed to make such deed; that the claim of said defendants, Dorothea Bochman and George Bochman, and that of said plaintiff, under them, are wholly without consideration and without right, and void; that said deed of said Leaman to said Anna X. Bochman, and the deed of George Bochman and his wife, Dorothea Bochman, under the name of Anna Bochman, are each and both without consideration, and by reason of the premises, fraudulent and void; that neither said plaintiff, Henry A. Mathews, nor his said wife, Anna X. Mathews — formerly Anna X. Bochman — nor said George Bochman, nor his said wife, Dorothea Bochman, have any title, right, or interest in said real estate, or any part thereof, but the same, of right, belongs to, and should be vested in, said Thomas Leaman as the owner thereof in fee simple.”
    On this finding a decree was entered in favor of Leaman for the premises. A bill of exceptions was taken on the trial, which, after stating that the several deeds referred to in the pleadings, and the lease and the assignment thereof, had been given in evidence by the plaintiff, proceeds as follows:
    “And thereupon the defendant, Thomas Leaman, to maintain the issues on his part arising upon the answers and cross-petition filed herein by said Leaman, and the answers and replies and pleadings filed by the plaintiff and the other several defendants herein thereto, being sworn as a witness in his own behalf, and not having or offering in evidence any memorandum, declaration, paper, writing, or other written evidence tending to prove any of the facts alleged in his cross-petition, did offer parol evidence, tending to prove that previous to, and at the time of, the execution and delivery of the deed marked ‘ Exhibit B,’ by him, the defendant, Anna X. Mathews was a married woman, the wife of one John Brenning, but living separate and apart from him; that her maiden name was Anna X. Bochman, and that she was known by this name as well as by the name of Anna X. Brenning; that Dorothea Bochman was the name of her mother, with whom she was then living; that the defendant, Thomas Leaman, at this time was a married man, but living separate and apart from his wife, was boarding in the same house with Anna E. Brenning, and was cohabiting with her; that she solicited and importuned him to deed her the property described in the petition, and a large amount of personal property; that in compliance with her request, and to keep up a good understanding with her, he executed and delivered to her the deed and a bill of sale; but that she promised at the same time to give him back the property whenever he wanted it; that at that time he was having misunderstandings and disagreements with his wife; that the deed, though absolute on its face, and in consideration of seven hundred dollars, was, in fact, without any consideration whatsoever; that subsequently, and when he became reconciled to his wife, he requested her to give him back the property, and that she did give him back the personal property; and that she at first agreed to give him back the real estate, but subsequently refused.
    
      “ To all of which evidence tending to establish a trust by parol, the plaintiff and the other several defendants to said cross-petition objected; and the court, on consideration, did overrule said objection, and admit said testimony to be given, to which opinion of the court the said plaintiff and the other several defendants to said cross-petition, by their counsel, excepted.”
    The following errors are assigned:
    1. That the deed from Thomas Leaman to Anna E. Boehman Was executed upon an illegal consideration.
    2. That the court erred in allowing an express trust to be established by verbal evidence only.
    
      Yaple $■ Healy, attorneys for plaintiffs in error:
    Leaman and all who claim under or through him, are forbidden by the settled rules of law from obtaining the relief the [District Court gave them, because his conveyance was executed for an illegal purpose.
    Can a parol express trust — that is, one founded solely upon a verbal contract or agreement — be established as against a general warranty deed, purporting to be for a valuable consideration? We think not. Thompson v. Thompson, 18 Ohio St. 73; Dean v. Dean, 6 Conn. 287; Parker v. Bodley, 4 Bibb, 102; Childs v. Woodson, 2 Bibb, 72; Knaggs v. Martin, 10 Kansas.
    In Ohio, the law on this subject has never been declared, let alone defining what it is. All the cases have been disposed of with an “ if” such testimony be admissible for such purposes at all, etc.
    The ease of Fleming v. Donahue, 5 Ohio, 256, decides that previous to the statute of frauds a trust in real estate might be created by parol and established by parol proof.
    
      J. $ B. A. Johnston, attorneys for defendants in error:
    The only legitimate question in this case is as to whether the parol evidence offered, tending to establish a trust, was competent. W e confidently claim that such evidence has always been received and considered by the courts in Ohio. Fleming et al. v. Donahue et al., 5 Ohio, 255; Miller and wife v. Stokely et al., 5 Ohio St. 194; 2 Redfield’s Story’s Eq. Jur. 417, sec. 1197; Boyd v. McLean, 1 Johns. Ch. 582; Marks v. Pell, 1 Johns. Ch. 593; Baird v. Kirtland, 8 Ohio, 21; Cotterell v. Long, 20 Ohio, 464, Stall et al. v. Cincinnati et al., 16 Ohio St. 169.
    In this last case only, there is use made of the word “if” as indicating that there was not entire freedom from doubt as to the competency of such evidence.
   White, J.

The first error relied on in this case is, that the deed from Thomas Leaman to Anna K. Bochman was executed upon an illegal consideration.

This objection can not avail. The bill of exceptions does not undertake to set out all the evidence. It merely shows that there was evidence tending to prove the consideration to have been illegal. If the fact was not proved, it could have no legal effect. Whether it was proved or not, is not stated. No such defense was set up in the pleading. Whether it ought to have been, to he available, we need not now inquire. "We may remark, however, that in Haigh v. Kaye, L. R., 7 Chan. App. 473, it was decided that such matter ought to he pleaded.

It appears from the pleadings that Leaman owned the premises in question up to the time of his deed of August 7, 1867. George Bochman and wife claim that by that deed the premises were conveyed to her. Mathews claims solely through the conveyance from Bochman and wife. The averments of the cross-petition are that the deed from Leaman was not made or delivered to the wife of George Bochman, but to the wife of the plaintiff, Anna K. Mathews, then known as Anna K. Bochman. Mrs. Mathews, in her separate answer, which was sworn to by her, denies the averment in the cross-petition, that the deed was made and delivered to her. The first defense in the answer of Mathews leaves it somewhat doubtful whether he means to deny the fact of the making of the deed to his wife, or whether he merely intends to deny that it was made without consideration and in trust. But as he claims the property under a conveyance from Bochman and wife, and sets up no other right or claim, it is fair to infer that he means, like his wife, to deny the fact of a conveyance to her.

The -court found, upon the testimony, which must be presumed to have warranted the finding, that the property was not conveyed to the wife of Bochman; consequently the plaintiff could acquire no title by the deed from them. The grantee in the deed of Leaman was found by the court to be the wife of the plaintiff. She, in her answer, denied not only the alleged trust, but the fact that the property had been conveyed to her.

It is.contended that the court erred in allowing the facts alleged in the cross-petition to be established by parol evidence; and the statute of frauds is relied on as a bax; to the introduction of such evidence.

The circumstances of the case are peculiar. There can be no objection to the competency of parol evidence to show that Mrs. Bochman was not the grantee in the Lea-man deed. This fact the court found to be proved. Now, the real grantee in the deed, Mrs. Mathews, set up no claim under it. The court found the fact to be that the property was conveyed to her, but that the deed was without consideration, and, although apparently an absolute deed, that it was understood to be, and was, in fact, in trust solely to secure the property for the defendant, and was to be reconveyed to him on demand.

If these facts are capable of being proved by parol evidence, there is no ground for disturbing the decree.

Our .statute of frauds omits the seventh, eighth, and ninth sections in relation to trusts contained in the English statute. "We do not deem it necessary now to consider the effect of such omission. The fourth section of our statute is taken from the third section of the English statute, and in terms ha3 reference to the assigning or granting of legal interests. The fifth section of our statute corresponds with the fourth section of the English statute, and prohibits the bringing of actions in the cases specified.

Although equitable rights and suits in equity are not named, courts of equity, equally with courts of law, are bound by the statute, in so far as it is applicable to the peculiar jurisdiction exercised by those courts.

Eraud, and the absence of any other adequate remedy, is one of the principal grounds of equity jurisdiction; and the doctrines of courts of equity in regard to trusts, grow largely out of fraud, express or implied.

It is said “ fraud in equity is an exception to every rule.” And the principle has often been announced by courts of equity, that the statute of frauds was not made to cover fraud.

In the present case, the trust does not arise on the mere agreement, but on the conveyance of the property, for which the trust assumed was the sole consideration.

The trust is not raised so much because of the fraud in the original acquisition of the property as in the subsequent refusal to execute the trust. Page v. Page, 8 N. H. 194; Tif. & B. Tr. 189. As said by Bell, J., in Morey v. Herrick, 18 Penn. St. 128, “the attempted denial of the confidence is such a fraud as will operate to. convert the purchaser into a trustee ex maleficio.”

The case may be brought within the third class of cases, as defined by Lord Hardwicke, in which the court had declared resulting trusts, namely, “cases of fraud, and where the transactions have been carried on mala fide.” Loyd v. Spellet, 2 Atk. 150.

The transaction may not be such as would sustain an action for deceit. But equity deals more liberally than courts of law in matters of fraud, and regards the transaction as incomplete while the trust remains unexecuted.

It is upon this principle that courts of equity, on parol evidence, establish an equity of redemption against an absolute deed; or declare a trust in property devised against the devisee; or, as in Crocker v. Higgins, 7 Conn. 342, require the grantee of an absolute deed in fee, to execute to a third person a lease for life in the premises conveyed, although the agreement for the lease was made exclusively between the grantor and grantee, in part consideration of the deed.

Our present holding is in accordance with the former decisions of this court, in so far as it has been found necessary to consider the question. Fleming v. Donahue, 5 Ohio, 256, which arose before the enactment of our statute of frauds; Woods v. Dille, 11 Ohio, 456; Loring v. Melendy, Ib. 355; Miller v. Stokely, 5 Ohio St. 194; Stall v. Cincinnati, 16 Ohio St. 169.

No question arises in this case as to the sufficiency of the evidence. If the evidence was competent, it must be presumed to have been sufficient. In Miller v. Stokely, supra, the rule as to the amount of evidence required in such cases, is thus laid dowu: “To establish an express trust, in the case of a conveyance, by deed absolute on its face, it is requisite that the evidence should be clear, certain, and conclusive in proof, not only of the existence of the trust, and that, too, at the time of the conveyance, but also as to its terms and conditions.” The same rule was applied in Stall v. Cincinnati, supra. In both cases, the proof was; held to be insufficient.

Judgment affirmed. .

Day, C. J., McIlvaine, Welch, and Rex, JJ., concurring.  