
    Addison L. Thompson et al. v. Sarah L. Thompson.
    1. In a deed of conveyance to a son-in-law, the consideration stated was his marriage and “natural love and affection” of the grantor for his daughter and the grantee; and the purpose expressed in the deed was to advance the grantee in life: Held, that no trust in the estate conveyed arose in favor of the daughter.
    2. In a suit to obtain the title to land, by correcting a mistake in a deed under which both parties claim, the grantor, having no interest in the controversy, is not rendered incompetent as a witness.by section 313 of the code, as amended March 31, 1864, though the party against whom he is called upon to testify claims title, and defends as heir.
    3. Mistake as to the law of descents, where the intention in making a deed was to vest the estate conveyed in the grantee, affords no ground for relief in equity.
    Error to the Superior Court of Cinciimati.
    One question in this case was decided at the last term, and the decision is reported in 17 Ohio St. 649... The case was continued as sfco the other questions.
    For convenience, the statement of the case made in that report of it is, in part, now repeated, and a supplemental statement is here given, to show the questions in the case decided at the present term.
    The plaintiff below, defendant in error, in her petition, sets out the following deed as “ executed and acknowledged according to the laws of Kentucky,” by her father to her husband, since deceased :
    “ This indenture, made and entered into this 28th day of September, 1850, between Robert Jones, of Cynthiana, Kentucky, of the one part, and McCalla Thompson, of said Cynthiana, Harrison county, Kentucky, of the second part, witnesseth: That whereas, the said Thompson has heretofore intermarried with Sarah Jones, the daughter of said party of the first part, and for and in consideration of the premises and the natural love and affection which the party of the first part has and entertains for his said daughter- and said Thompson, and for the purpose of advancing said Thomp74] son in life, the «party of the first part has bargained and sold, and by these presents doth bargain and sell, transfer, and convey, to said McCalla Thompson, all that certain lot or parcel of ground,, with a three-story brick house thereon, situated in the city of Cincinnati, State of Ohio, on Yine street [described].
    “ To have and to hold said property, with its appurtenances, rights, and privileges, unto said Thompson, his heirs, and assigns-forever.
    “ In testimony of which I hereunto set my hand and seal, this-day and year above written.
    “Robert Jones, [seal.]”
    The petition states that McCalla Thompson died November 24, 1852, leaving issue of the marriage one son, born January 11,1850;. that this son died November 18, 1883; that under the circumstances stated in the petition, she, the plaintiff below, is entitled to-the property, either as conveyed in trust for her, or, if not in trust, as-conveyed to her husband by mistake, being intended for her, or because-the consideration stated in the deed was not such as to make the deed effectual, and the title, therefore, remained in her father, who-by deed, duly executed and acknowledged, January 11, 1865, conveyed the property to her, and being in possession, she prays that, her title be quieted against the defendants, now plaintiffs in error, they being the brother, sisters, nephews, and neices of her husband,, who never asserted any claim, but refused to release, some- of them being minors.
    At the May term, 1865, of the Superior Court, the case was subgnitted to the court for the trial of the issues presented by the petition, answer, and reply.
    Thereupon, Robert Jones was duly'sworn as a witness for the plaintiff (defendant in error), and testified that he is her father.
    The defendants (plaintiffs in error) objected to this witness as in-competent to testify for the plaintiff, he being the assignor or grantor to plaintiff of the title claimed in the petition; which exception the court reserved for consideration, and subject to the exception permitted the witness to proceed.
    “ He testified that he purchased the premises described in the ^petition, in 1845, for his daughter, as an advancement to her, [75 .and intended the deed should be made to her, and charged her with it in his ledger, but the deed from Dundas & Co. came back from Philadelphia, where it was made, executed to him. That in November, 1848, his daughter, the plaintiff, married McCalla Thompson; that about two weeks afterward he handed to Thompson the memorandum concerning his property, [annexed to the bill of exception, and showing that the witness estimated specified portions of his real estate to be worth near $15,000, producing over $1,200 rents, leaving enough property besides to pay his debts. The memorandum further shows that the witness' purpose in purchasing the .specified property was to secure rents sufficient, in case of his death, to support his family; and expresses the witness’ willingness at any time to give his daughter, Mrs. Thompson, the lots and houses he ’had named to Thompson, his son-in-law, at their value-, and charge her with them.] That he conveyed to another daughter, his only •other heir, about the same time and also as an advancement, a lot ■on the corner of Sycamore and Eighth streets, Cincinnati. That he frequently said to Thompson that whenever he and Sarah wanted ,a deed for the property now in suit, he was willing to make one. That when Thompson concluded to remove from Kentucky to Cin•cinnati he said he would take a deed, and asked witness whether it •should be drawn to him and Sarah jointly, or to Sarah separately. That witness told him to write the deed any way that suited him^ •and that would secure the property in case of his death to witness’ daughter. Thompson was then in bad health — had been out in the Mexican war and got that Mexican dysentery, and thought that removing to Cincinnati would improve his health. He was a lawyer .and drew the deed. He read the deed to witness. Witness asked ¡him if it would secure the property to Sarah in cáse of his (Thompson’s) death. He said it would. He came to Cincinnati to live just before Christmas, 1850 ; had previously been residing at plaintiff's-house in Cynthiana, Kentucky, practicing law, and had not then, resided in Ohio. He came to Cincinnati intending to practice law,, and lived here that winter, but returned to my house in May, 1851, 76] and remained there until *kis death in 1852. He (witness) had, no knowledge of the law of Ohio regulating the descent of real estate. Plaintiff married Thompson-in November, 1818; had a son (Robert. W.) by him, born in January, 1850. Thompson died in November,, 1852. His son Robert, above mentioned, the only issue of the marriage, died about the middle of October, 1863, while here on a visit with his mother. After Thompson’s death this property went on, just as before. I attended to the rents which were of little value; collected through an agent, Cleneay, who remitted the proceeds, groceries and the like, which plaintiff got; kept no account of them, because the rental amounted to but little. In December, 1863, my daughter came here and sold the property, but on her return mentioned this difficulty about the title. I saw the defendant, Addison L. Thompson, at his father’s house, next door to mine,, the evening she returned, and asked him to release the property. He said he did not know that he had any claim to it, but if he had, he wanted it. He answered in a very vulgar manner.
    “ Said Robert Jones further testified that there was no value-given for this deed and none was to be given; that it was as to the consideration merely as stated in it; that McCalla Thompson was-a noble young man, a fine young man, and he (witness) would have-done anything' in the world for him. Witness then testified that the deed produced and shown to him, dated January 11, 1865 (for-the property in question), was executed by him to the plaintiff, but.' had not been recorded on account of pendency of this question.
    “Being cross-examined, said Robert Jones testified he could not produce the original of the deed for this property made by him to McCalla Thompson. That when Thompson handed it to him for execution, he (witness) sent for the county clerk to call at his store; could not remember, but thought it was read only once; that the reading of it then was just as copied now in the petition; that he-then understood the deed to be just what it says, a deed to McCalla. Thompson, and to advance him in life, and as a deed to him and his heirs; witness took it for granted that ‘his heirs’ meant McOalla’s family. Witness then testified that he does not believe or ^suppose that McCalla Thompson took the conveyance with [77 any other understanding than that taking it to him and his heirs,, in the form the deed is expressed, was carrying out the witness’ intention. McCalla Thompson knew nothing of the laws of Ohio that he (witness) never before had made a deed; owned no real estate ; may have written the deed to his other daughter himself; h as-written several deeds since; had taken two or three deeds to himself previously; had noticed the word ‘ heirs ’ in them — thought it meant children ; understood, of course, that after Thompson’s death Ms son took the property, but thought the mother also would come in; thought heirs meant wife as well as child ; can’t say that Thompson said so, the transaction having been ten or fifteen years ago; do n’t know whether the property passed as Thompson’s property in his lifetime; Thompson collected the rents, and during the time he lived in Cincinnati, resided in this house. He had no real estate in Kentucky, except an out-lot of three and one-half or four acres at Cynthiana, which witness sold, as guardian of his son, to pay Ms physicians, etc., and a tract of one hundred and six acres, which he purchased just before his death, and took a deed, but for which witness paid the purchase money. This also has been sold. Witness and Thompson were partners in a store appraised at $2,800 or $3,000. Witness, when he took him in, credited himself with the stock on hand, say $1,500 or $2,000. Thompson may have had $400 or $500 cash to his credit, but there was a bill against him. After his death, witness went to Philadelphia and paid the debts of'the store himself, some $3,300. All personal accounts, notes, etc., of Thompson went to the defendant, Addison L. Thompson, his brother and administrator. Witness then stated there had been no controversy between himself and said administrator about settling the estate. He claimed the store. Witness told him that he (witness) must first pay the debts, and that after doing that he was ready. The first thing witness knew he was sued by Addison L. Thompson, as administrator; thinks it was since this suit was commenced.”
    And upon this testimony the plaintiff rested.
    ^Testimony was offered on behalf of defendants, but it is [78 not necessary to state it.
    Upon.the testimony offered by the parties, the Superior Court reserved the case for the opinion and decision of the court in general term, upon the two-questions following, viz :
    1. Whether the deed of Robert Jones to McCalla Thompson, copied in the petition, is supported by any sufficient consideration, there being none, in fact, shown, except such as is in said deed stated.
    2. It being made to appear that Robert Jones has conveyed the premises in question in fee simple to the plaintiff, by deed executed since the death of McCalla Thompson and his only child, whether •said Robert Jones is a competent witness in the case for said plaintiff, to prove that the deed to McCalla Thompson was executed and delivered to him by mistake, whereas it was intended to have been executed and delivered to said plaintiff.
    The first question alone was passed upon in general term, the court holding the deed void for want of consideration, and that no estate passed to the grantee; and therefore the relief demanded in the petition was granted.
    The defendants excepted to this holding and action of the court, and moved for a new tidal on the grounds following:
    1. The finding was against the law and the evidence.
    2. The court improperly admitted the testimony of Robert Jones.
    3. Other causes appearing on the record.
    This motion was overruled, and exceptions taken.
    At the last term of this court, the decision of the Superior Court in general term was hold to be erroneous, and that the deed of Robert Jones to McCalla Thompson was supported by a sufficient consideration stated in the deed itself, and took effect as a voluntary -conveyance. 17 Ohio St. 650. The other questions in the case are now for decision.
    
      Rufus King and S. J. Thompson, for plaintiffs in error:
    1. “If it be conceded,” to use the guarded terms of this court, 79] that, in opposition to the terms of an absolute deed, a *trust can be sot up by parol, it is essential that the evidence be so certain .and conclusive as to exclude every rational hypothesis to the contrary, with the certainty of a positive written declaration of the trust; :and so conclusively as to remove all reasonable and well-founded doubt. 5 Ohio St., 194, 197; 16 Ohio St. 169, 174.
    Under this rule the testimony of Robert Jones not only fails to establish a trust or any mistake, but makes it too plain for doubt that the deed was perfectly understood when he executed it; that he intended it expressly as stamped upon its face, not only for McCalla Thompson, “ and for the purpose of advancing said Thompson in life,” but. understood and intended it to inure to Thompson’s heirs. He was not misled, nor misinformed, nor mistaken. The Kentucky law, as appears in this record, is more •stringent than ours, and but for the death of McCalla Thompson’s child none of this resort to previous wishes, intentions, and declarations, where too plainly the “wish is father to the thought,” would have been heard of. It is the strongest proof of the wisdom of that rule which excludes all such passionate afterthoughts from the ears of justice.
    2. Eobert Jones’ testimony is not competent for the defendant in error.
    But for this conveyance to her, January 11, 1865, he must necessarily have been the plaintiff in an action to establish a trust or mistake, and reform the deed; and Young v. Miller, 10 Ohio, 85, is directly in point, and unaffected by the code: .a fortiori in an action to revoke the estate.
    If plaintiff, he was incompetent to testify against parties who “ defend as heirs of a deceased person.” Code, sec. 313, as amended (61 Ohio D. 128). And this disability continues, notwithstanding his conveyance to his daughter. Code, sec. 314.
    
      W. Y. Gholson and John W. Okey for defendant in error:
    1. If the deed is in any sense valid, then McCalla Thompson was only a trustee for his wife, and his brothers and sisters (defendants below) should be compelled to execute the *trust by conveying [80 the property to Mrs. Thompson. 2 Story’s Eq., sec. 1197; 2 Spence’s Eq. 199.
    Though there may be no express trust in the deed, yet if it may be collected from circumstances arising out of the conveyance that an absolute disposition to that party was not intended, a trust may be declared; and for this purpose parol evidence may be admitted. Hutchins v. Lee, 1 Atk. 447; Rider v. Kidder, 10 Ves. 367; Cripps v. Jee, 4 Bro. Ch. 472; Cook v. Fountain, 3 Swanst. 593 ; Cases 2 Abbotts Dig., N. Y. 678; 1 Spence’s Eq. 511; Hill on Trustees, 116 ; Ib. 106* et seq.
    2. Here was a mistake which the court ought to correct in favor of Mrs. Thompson.
    Mr. Jones, a credible witness, proves the mistake very clearly, and he is in no way contradicted. If he was a competent witness, we insist that this ground of relief is also made out. A mistake of.law may be relieved against. Young v. Miller, 10 Ohio, 85; McNaughten v. Partridge, 11 Ohio, 223; Evants v. Strode, 11 Ohio, 488; Webster v. Harris, 16 Ohio, 490; Clayton v. Freet, 10 Ohio-St. 544; Goshorn v. Purcell, 11 Ohio St. 641; Ormsby v. Long-worth, 11 Ohio St. 666.
    But this should not be regarded as a proceeding to be relieved from a mere mistake of law, but of fact, concerning which the power of a court of equity is unquestioned. What was the law of Ohio in relation to the descent of property, was, to the parties in-this case living in Kentucky, a question of fact and not of law. Lane, C. J., in Ingraham v. Hart, 11 Ohio, 256 ; Smith v: Bartram, 11 Ohio St. 690; Niagara Co. Bank v. Baker, 15 Ohio St. 68.
    3. Robert Jones was a competent witness to prove the mistake. Stone v. Hall, 17 Ala. 557; 1 Brock. 126; Code, sec. 310; Code,, sec. 313, as amended by act of 1864 (61 Ohio L. 128) ; Code, sec. 314, as amended by act of 1851 (S. & C. 1037). The provisions of these sections 313 and 314 have no application to a case like this.
   White, J.

This case was partially disposed of at the last term, and, so far as then determined, is reported in 17 Ohio St. 650.

§1] *The deed from Robert Jones to McCalla Thompson having been held valid, it is insisted that the latter, by the deed, took the title to the property in trust for his wife.

We are not satisfied that this claim is well founded.

No such trust is expressed on the face of the deed; and the law will, only imply a trust in the case of necessity. Cook v. Fountain, 3 Swanst. 592.

In the absence of fraud or mistake, or the violation of some principle of equity, the existence of the trust depends upon the intention of the parties. “ In every case of the creation of a trust, it is the intention that governs; and if, upon a consideration of all the circumstances, the court is of opinion that the settler did not mean to- create a trust, the court will not raise up a trust where-none in fact is contemplated.” Lewin on Trusts, (s. p.) 100.

In this case no fraud is pretended, and the question of mistake-will-be hereafter noticed.

The intention to create a trust is to be ascertained according to the ordinary.rules of construction, by looking at the whole instrument in the light of the surrounding circumstances at the time it. was made. . .

The trust, if it exist, must have afisen on the delivery of the-deed; and- if it did not arise then, subsequent events, though wholly unforeseen and unexpected, would not create it. If the-alleged trust could not have been enforced against the grantee in his lifetime, nor against his son, had he survived, neither can it be enforced against the defendants.

In the present case, as has already been held, the consideration in favor of the grantee is sufficient to uphold the deed. It purports-to convey an estate in fee, and its declared purpose is to advance-the grantee in life. The fact that natural love and affection for the-daughter, is stated by the grantor as a consideration, is the only ground found in the deed on which a trust is supposed to arise.. Natural love and affection for the daughter is the foundation of the consideration in favor of her husband, and, in virtue of the-marriage, extends to him; and a conveyance to advance the husband in life necessarily, though indirectly, inures to the benefit of the wife.

*We, therefore, discover no sufficient ground from which [82' to presume an intention to separate the beneficial interest from the legal estate; and, consequently, the equitable follows the legal, title.

The next question in order is, whether Robert Jones, the grantor in the deed to McCalla Thompson, was a competent witness against the defendants below. We think he was.

The general rule as to the competency of witnesses is found in-section 310 of the code, which provides: “ No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the' same, as a party or otherwise.”

Exceptions to the general rule are found in section 313, which, as-amended March 31, 1865 (61 Ohio L. 128), provides that among other cases, no party, to a civil action shall be allowed to testify by virtue of section 310, in any action where the adverse party claims or defends as heir, except in certain specified eases, which it is not here necessary to notice.

Now, it is true that the parties defendant defend as heirs of Robert W. Thompson, deceased, the infant son of McCalla Thompson and the plaintiff; but the witness is no party to the suit, nor' does he claim any interest adverse to the defendants. He parted with all his interest by the deed of conveyance to McCalla Thompson. Both parties claim under that deed. The contention is wholly between the plaintiff and the defendants. The plaintiff, claiming to be the equitable owner of the land, asks a reformation-of the deed, and to be invested with the legal title. The defendants resist her claim, and rely on their title as heirs.

The deed subsequently made by the witness to the plaintiff does not affect the question, and may be laid out of view. His deed to MeCalla Thompson being valid, by its delivery, he was divested of his interest in the land. At the time, therefore, of making the second deed, he had no estate upon which it could operate, and the case stands as if it had not been made.

The remaining question is, whether the plaintiff in entitled, in equity, to the relief she seeks, on the ground of mistake in the execution of the deed.

88] *The question arising on this branch of the case, is rather one as to the sufficiency of the proof to show a mistake in the use of the terms in the deed, than as to any uncertainty in regard to the rules that should govern in reforming the instrument upon a proper state of proof.

In Evants v. The Adm’r of Strode et el. (11 Ohio, 480), it was laid down that where an instrument, by mistake of the parties, as to the legal effect of the terms used, fails to carry out their intention, relief may be afforded in equity.

And in Clayton and Wife v. Freet et al. (10 Ohio St. 544) it was held that a mistake in the use of technical language in a deed of conveyance, may be relieved against, upon proper proof. And, that where the parties are shown, through ignorance and mistake, to have conveyed an estate to the grantee and her heirs, when the intention was to convey the land to the grantee for life, remainder to her children, the mistake might be corrected.

But it requires a clear and convincing state of fact to warrant the court to interfere with and reform the instrument.

At law a deed is conclusively presumed to express the intention of the parties. But in equity, the matter of a mistake in its execution may be inquired into, and, if the mistake be clearly proved, the ■deed may be reformed, and made to conform to the understanding of the parties, and thus, to effectuate their intention.

A careful consideration of the evidence fails to satisfy us of a mistake that would warrant us in interfering with the deed in question.

The only witness who /testifies to the transaction of the execution of the deed is the grantor. The transaction to which he testifies, occurred more than,fourteen years before; and the truth in regard to the transaction is more likely to be correctly ascertained from its general character than from the recollection of the witness as to the particular language now supposed to have been used at the time.

The making of the deed was deferred until after there was issue of the marriage, a son, who, at the date of the deed, was eight months old. The deed was drawn by the grantee, who was a lawyer, and in whom the grantor'had, and for *aught that ap- [8íü pears deservedly, great confidence. He characterizes him as a noble young man, for whom he would have done anything in his power. He states that the deed was read to him, and he understood it to be a deed to McOalla Thompson, to advance him in life, and as a deed to him and his heirs. He further states that he does not believe, or suppose, that the grantee took the conveyance with any other understanding than that taking it to himself and his heirs, in the form expressed, he was carrying out the intention of the witness.

It is more reasonable to infer that the conveyance was intended to be of a fee simple than of a less estate. There is nothing to show an intention in the grantor to restrict or limit the power of the grantee to dispose of the property absolutely.

Whatever interest his daughter, or grandchild, was supposed to have, they were expected to take as heirs of the grantee, and not directly as parties to whom the deed was made.

The mistake is claimed to have occurred in the use of the term heirs. It is evident the grantor had a very indefinite idea of the meaning of the term. He says he took it for granted “ his heirs” meant the grantor’s “family.” He further states that he thought “it meant children;” that he understood, of course, that after the grantee’s death his son took the property, but he thought the mother would also come in — that heirs meant wife as well as children.

To undertake to give definiteness and precision to the views which the grantor supposes himself to have entertained as to the meaning of the term, would be a work of mere conjecture.

But, if he intended, as we think he did, to invest the grantee with an estate in fee simple, there was no mistake in the use of the terms nor in the operation of the deed.

In this view, the supposed mistake consists of a misunderstanding of the law of descents, as applied to events which were contingent at the time of making the deed, but which subsequently •happened, and, thereby, a class of persons not contemplated let in to the succession.

If the death of the grantee, and that of his son without issue, 85] *and the consequent succession of the defendants as heirs, had been foreseen, the result would, doubtless, have been provided •against, either by limiting the estate conveyed, or by making the •conveyance to the daughter. But this remote and unforeseen con•sequence does not show a mistake as to the estate conveyed directly to the grantee, nor that the operation of the deed, as between the ■parties, is different from what was intended.

Judgment reversed, and cause remanded.

Day, C. J., and Brinkerhoff, Scott, and Welch, JJ., concurred.  