
    Antenen, Admr., v. Frazer et al.
    
      Real property — Ingrafting parol trust on absolute deed — Clear and convincing evidence of terms and conditions of trust, necessary.
    
    1. To ingraft parol trust in lands on absolute deed, evidence as to terms and conditions of trust and declarations of trust must be clear and convincing, and latter must be contemporaneous with execution of deed.
    2. Evidence held insufficient to ingraft parol trust in lands on absolute deed.
    (Decided May 24, 1926.)
    Appeal: Court of Appeals for Butler county.
    
      Mr. Harry S. Wonnell, for plaintiff.
    
      Mr. B. Vincent Pater and Mr. L. J. Ziliox, for defendants.
   Hamilton, J.

Plaintiff in this action seeks to in-graft a parol trust upon a deed absolute.

It appears from the record that in 1910 plaintiff’s decedent, Anna Gardner, conveyed certain property by deed, of general warranty to her son, Andrew Gardner, who lived at home with his mother, and continued to so live until his death some 10 years later. The consideration named in the deed was $1, and other good and valuable considerations.

Anna Gardner died September, 1924, leaving several children.

The rule is that to ingraft a parol trust in lands upon a deed absolute upon its face the evidence shall be clear and convincing as to the terms and conditions of the trust, and the declarations of trust must be likewise clear and convincing and contemporaneous with the execution of the deed. This rule is laid down in many cases, notably the case of Russell v. Bruer, 64 Ohio St., 1, 59 N. E., 740, and Boughman v. Boughman, 69 Ohio St., 273, 69 N. E., 430.

It appears from the evidence disclosed in the bill of exceptions that Anna Gardner, the mother, had indorsed notes for some of her children, and had executed mortgages on the home; that she was harassed with creditors and sought relief from them; that she stated that she had to do something to save her home, and stated to some of her other children that she was going to deed her property to Andrew, who would give it back to her when she wanted it.

Witnesses for the plaintiff testified to some declarations of Andrew Gardner, grantee in the deed. One of the declarations was that he had the property in his name, and that it was on the safe side, and that if his mother wanted the property back he would deed it back any time she said. This evidence is inferentially disputed by witnesses for the defense.

It may be fairly stated that these declarations are all that tend, in any way, to establish a parol trust. The evidence tends more to support the proposition that the transfer was made primarily to defeat creditors, rather than to create a trust. In any event, the evidence falls short of the high character required to establish a parol trust on a deed absolute.

We find the equities in favor of the defendants, the appellees. The injunction prayed for will be denied, and the petition dismissed.

Petition dismissed.

Buchwalter, P. J., and Cushing, J., concur.  