
    Robert Mosher et al. v. Susannah Butler et al.
    1. An action for specific performance against the heirs of the vendor, and against his grantee who took the legal estate with notice, is not an action for relief on the ground of fraud within the meaning of section 15 of the code; and the grantee can not protect himself by the limitation therein prescribed.
    2. The proviso in section 313 of the code, as amended March 23, 1875 (72 Ohio L. 77), applied only to a case for setting aside a will or the deed of a deceased person. The heirs, legatees, and grantees, who are de- • dared competent witnesses by the proviso, are such as derive title from the same person ; and where a person does not claim under a will or deed, he must, to come within the proviso, claim as heir of the testator or grantor whose will or deed is sought to be set aside.
    Motion for leave to file a petition in error to reverse the judgment of the District- Court of Morrow county.
    The original action was brought by Susannah Butler and others, the widow and heirs of David Butler, deceased, against the heirs and grantees of Barak Butler, deceased, for the reformation and specific performance of a written agreement entered into between David Butler, in his lifetime, and his father, Barak Butler.
    
      The agreement bears date February 22, 1848, and is for the sale by Barak Butler to David, of eighty acres of land. By -mistake the agreement misdescribed the land intended to be sold.
    David died in 1861 intestate.
    February 5, 1870, Barak sold and conveyed forty acres of the land in controversy to Robert Mosher; and on the 11th of the same month he conveyed to his daughter, Deborah Wells, twenty acres thereof.
    Barak Butler died in November, 1873, intestate.
    The petition prayed to have these deeds set aside and for. other relief.
    The defendants, Robert Mosher and Deborah Wells, set up by way of defense in their respective answers, among other things, (1) the non-performance of the agreement on the part of the plaintiff's; (2) its abandonment and rescission ; and (3), on the part of Mosher, that he is a bona fide, purchaser for value. On the trial the court allowed two of the plaintiffs to testify in their own behalf, against the ob-. jection of the defendants, to matters material to be proved on their part, aud which occurred between them and Barak Butler, in his life-time.
    The defendants duly excepted to the ruling.
    A decree was rendered for the plaintiffs. By the decree the deed to Deborah Wells was set aside ; and Mosher was charged with the repayment of so much of the purchase-money of the forty acres as was unpaid at the time he was found to have received notice of the rights of the plaintiffs, being subsequent to the delivery of his deed.
    Among the grounds of error relied on for the reversal of the judgment are the following :
    1. That the right of action was barred in four years after the execution of the deed to Mosher and Deborah Wells, and notice thereof to the plaintiffs.
    2. That the plaintiffs were incompetent to testify to transactions occurring before the death of Barak Butler.
    
      T. H. Dalryrnple, for the motion,
    contended that the deeds could be set aside only on the ground of constructive fraud. 1 Story’s Eq. Jur., secs. 895, 897 ; Le Neve v. Le Neve, 2L. 0. in Eq. 134.
    That the four years limitation of section 15 of the code applies to equitable actions. Longworth v. Hunt, 11 Ohio St. 199; 2 Story’s Eq. Jur., secs. 1520, 1520« note, 1521<x note; Angelí on Lim. 20-180 note, 184 note 4.
    As to the admission of evidence, see Hubbell v. Hubbell, 22 Ohio St. 208; section 313 of the code (72 Ohio L. 77).
    
      Olds § Dickey, contra.,
    claimed that this was not “an action for relief on the ground of fraud,” and consequently does not fall within section 15 of the code limiting the bringing of the action to four years.
    And that that part of the evidence relating to the conversations and admissions of Susannah Butler, the widow of H.ivid, was not competent as the proof of any fact, for the reason that the interest of the plaintiffs was not a joint interest, and a declaration or admission of one can not be used to affect the interest of the other plaintiffs. Osgood v. Manhattan Co., 3 Cowen, 612; Daw v. Brown, 4 Cowen, 483; Thompson v. Ihompson, 13 Ohio St. 356.
   White, J.

The first ground of error alleged is founded upon a misconception of the nature of the action. The objection assumes that the action is brought for relief, on the ground of fraud; and that, consequently, the right to maintain it is limited by section 15 of the code.

But such is not the nature of the action. The case is, in point of fact, an application by the plaintiffs for the specific performance of the agreement entered into between David Butler and Barak, his father. The nature of the action is the same as it would have been had Barak not conveyed, and the action had been brought against him or his heirs for the specific performance of the agreement.

Where there is a contract of sale, equity regards the vendor as holding the legal estate in trust for the purchaser, upon the terms of the contract; and all persons taking the legal estate, with notice, hold it subject to the same trust.

But until the purchaser has perfected his equity, by performance of the contract on his part, he is not entitled to the legal estate, either as against the vendor or his grantee.

2. The second ground of error is, we think, well taken.

The same erroneous view as to the nature of the action that lies at. the foundation of the objection just considered, seems to have been adopted in holding that the plaintiffs ■were competent witnesses to testify to facts ocenrriug before the death of Barak Butler, the defendant’s grantor.

The action appears to have been1 regarded as brought to set aside the conveyances made to the defendants, Mosher,, and Mrs. Wells, and hence that the plaintiffs were rendered competent to testify as they did, under the proviso in section 313 of the code, as amended March 23, 1875 (72 Ohio, 77).

The section is as follows :

“No party to a civil action shall be allowed to testify by virtue of section three hundred and ten, in any action where the adverse party ... is a party claiming or defending as heir, grantee, or devisee of a deceased person, except in the following cases : provided that nothing herein contained shall be so construed as to prevent any and all, the heirs, grantees, and legatees from testifying in cases to contest the validity of, or to set aside, a will or deed of any ancestor or grantor under whom they may claim title.”

Under the language contained in the body of the section, the plaintiffs were clearly rendered incompetent. They were parties, and.the defendants, against -whom they testified, were defending as grantees of a deceased person.

Do they come within the proviso?

It seems plain to us they do not.

The proviso applies only to a case for setting dside the will or deed of a deceased person.

The heirs, legatees, and grantees mentioned in the proviso, are such as derive title from the same person. And where a party does not claim under a will or deed, he must, to come within the proviso, claim as heir of the testator or grantor whose will or deed is sought to be set aside.

The plaintiffs do not claim title to the lands in controversy under a will or .deed of Barak Butler, nor do they claim as his heirs. They derive their title as heirs of David Butler, and the claim which they assert is, in its nature, adverse to the heirs of Barak, as well as to his grantees.

Leave granted, judgment reversed, and case remanded for a new trial.  