
    CAPRETTA v DI FILIPPO et
    Ohio Appeals, 9th Dist, Lorain Co
    No 790.
    Decided May 15, 1936
    Glitsch, Stack & Moon, Lorain, for plaintiff.
    Henry G. King, Lorain, for defendant and cross-petitioner Emidio Di Filippo, individually and as trustee, etc.
   OPINION

PER CURIAM

The cause is before this court upon appeal.

The petition seeks the foreclosure of a contract for the sale of land, marshalling and determination of priority of liens, and equitable relief.

The amended answer of defendant Di Filippo, for himself and as cotrustee for his wife, in effect alleges that plaintiff perpetrated a fraud upon said defendant in various respects, as set out in said answer; and by way of a cross-petition he seeks the cancellation of said contract for the sale of land, and an accounting from plaintiff.

Inasmuch as said defendant’s answer in effect charges plaintiff with fraud, and inasmuch as the allegations of the cross-petition are bottomed upon that claim of fraud, it was incumbent upon said defendant to produce clear and convincing evidence to show said fraud. This he has failed to do.

A decree may be drawn awarding to plaintiff i*>o relief prayed for in the petition, and dismissing defendant Di Filippo’s cross-petition, with exceptions to said defendant.

FUNK, PJ, and STEVENS, J, concur in judgment.

WASHBURN, J, not participating.  