Patterson v. Lamson. effect as that it is not competent to show, by parol proof, that in fact such deed was a deed of gift from a person not named in the deed, and that the named consideration was in fact paid by him. II. In determining whether real estate is ancestral or otherwise, the course of descent is to be controlled by the legal title. In Shepard v. Taylor, (R. I.) 3 Atlantic Rep. 382, it was held: "When a legal estate in reality and an equitable one, coming through different persons, unite in the same holder, the course of the legal estate, and not that of the equitable, determines whether the holder of both does or does not have an ancestral estate." This view is sustained by Chancellor Kent in Nicholson v. Halsey, 1 Johns. Chan. 416. Also by Goodright v. Wells, Douglass, 771; Selby v. Alston, 3 Ves. Jr. 338. As we have already seen, the legal title to the real estate in controversy was never vested in Lamson. We have also seen, that when the legal title became vested in Lillian there remained no equitable interest in any other person. The transaction was as if Lamson had made a gift of $6,000 to Lillian, and with it she had made this purchase. So far as the conduct and intention of Lamson appear by this answer, the legal and equitable title passed immediately and at the same time from Sked to Lillian, and however we may characterize the transaction as between Lamson and the other parties to it, it certainly was not a conveyance of real estate by deed of gift from him to Lillian. III. The only estate that Lamson parted with was six thousand dollars in money. The doctrine of equitable conversion finds no place for its exercise in the case at bar. It is peculiarly an equitable doctrine. While it may be invoked, in a proper case, in fixing the title in the person entitled thereto under the immediate operation of a deed, it is never employed in determining the course of descent where the title is so fixed. In such case, the course of descent is to be determined by rules of law. In the case at bar, there is no controversy concerning Lillian's title. By the concession of all parties she was vested with a fee-simple estate in the lands in controversy. This Patterson v. Lamson. being so, the law can alone determine the course of descent. Our statutes of descent and distribution are not to be construed or administered by the rules of equity. Foster's Appeal, 74 Pa. St. 391, 398-9; Armington v. Armington, 28 Ind. 74, 76. IV. We are not left without the light of adjudication, however, upon the questions involved in this controversy. In Brower v. Hunt, 18 Ohio St. 311, it was held: "The title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is the title under which the intestate immediately held." And, "Where specific tracts of land had been allotted to codevisces in pursuance of directions in the will of their ancestor, and, afterwards, one conveyed his tract to a co-devisee for a monied consideration as expressed in the deed, but in fact for a like conveyance, by the latter, of the tract he had received in the partition; held, that the title of neither was derived di rectly by devise from the ancestor, and that, for the purposes of descent, each was to be regarded as a purchaser." Upon this branch of the case, White, J., says, in the opinion: "The remaining question is as to whether the lands described in the first cause of action, came to Thomas Hunt by devise from his father. In our opinion they did not. The title mentioned in the statute is the title under which the intestate immediately holds. The title to these lands came to Thomas by deed of conveyance from Jacob, and the character of the consideration cannot alter the fact, and make that a title by devise from the ancestor which was in fact a title by deed from Jacob. There was no mistake in the partition which the deeds between Jacob and Thomas were merely designed to correct. Without the conveyance from Jacob, Thomas had no title to these specific lands, legal or equitable; yet the operation of the will was the same without the deed as with it. The title of Thomas, therefore, cannot be said to have come to him directly by devise from his father; and for the purposes of descent he must be regarded as a purchaser." Patterson v. Lamson. There are weightier considerations pointing to the ancestral character of the property involved in the case last cited than in the case at bar. The lands conveyed to Thomas came from the ancestor. The consideration for the conveyance came from the ancestor and came in land. No money consideration-no lands except ancestral lands-intervened to affect the question. All that could be said was that the title of Thomas did not technically come to him "directly," by devise from an ancestor. The case holds that the character of the consideration cannot affect the estate as ancestral or non-ancestral property. The logic of this case solves the case at bar. Lamson, the alleged ancestor, did not, it is conceded, directly deed these lands to Lillian. And, whatever right or equity he may have had in them as between himself and Sked after the negotiations for the purchase, and before the deed was executed, as between himself and Lillian he did not even indirectly convey the land; for he neither held nor claimed any interest, legal or equitable, asagainst her; and whatever rights the defendants assert, they claim through her. It follows, therefore, that with or without the aid of proof of facts different from those recited in the deed, the defendants are not able to establish the one fact indispensable to their defense, that the property in question came to Lillian by deed of gift from an ancestor. The facts alleged in the answer failed to constitute a defense, and the demurrer was well taken. There was error in overruling it. The views already expressed relieve us of the consideration of the questions arising upon the relation of Lillian to Lamson as his adopted child. Judgment reversed. Carey v. Kemper. CAREY V. KEMPER. Practice-Rev. Stats., sec. 5354-Infant-Right to show cause against judgment on arriving at age. Where, in a proceeding in error, to which an infant is a party defendant, this court reverses a judgment that had been rendered in his favor, and remands the cause to the court in which it had been rendered, with direction to render a judgment against the infant in accordance with its rulings, which is done, the judgment so rendered is the judgment of the court to which the cause had been remanded for judgment. And where the infant, on arriving at full age, would avail himself of the right secured to him by the eighth paragraph of section 5354 of the Revised Statutes to show cause against the judgment, and have it vacated for error, he must commence the proceeding in the court below, where the judgment was in fact rendered; it cannot be commenced in the first instance in this court. (Decided March 22, 1887.) PETITION to vacate or modify judgment of Supreme Court Commission. Samuel T. Crawford, for plaintiffs. MINSHALL, J. This purports to be a proceeding to vacate or modify a judgment of the supreme court commission rendered at the January term, 1883, in the case of Jane Carey et al. v. Bernard Kemper et al., having been a case on error to the district court of Hamilton county. Jane Carey, as appears from the record, was at the time a married woman, and Jacob Jennings Richardson was a minor. He became of age on September 25, 1886, and this proceeding was begun in October following. The former proceeding was begun by Jane Carey and her husband to reverse the judgment that had been rendered in favor of Kemper against her. Kemper filed a crosspetition to which he made Jacob, the minor, a party, the judgment of the court below having been in favor of him. The commission reversed the judgment in favor of the minor; and proceeding to render the judgment the district court, as it Carey v. Kemper. adjudged, should have rendered, reversed the judgment of the common pleas, dismissing the action as to the minor, and remanded the cause to the court of common pleas "for a decree directing the receiver to apply the rents" in a particular way, and for an order of sale, if the rents should prove insufficient, when applied as directed, unless the requisite amount should be paid to the clerk in a time stated; and further ordered the action to continue pending in the common pleas for adjustment between the life-tenants and remainder-man. The case is reported sub nomine, Carey v. Kemper, 40 Ohio St. 79. A motion was made at the same term by Jane Carey, and on behalf of the minor, for a vacation or modification of the judgment, and was overruled by the commission. The present proceeding differs somewhat from the motion. made before the commission. It is for (1) "Errors that are apparent on the record of said cause; and (2) errors or erroneous proceedings, that were not apparent on the said record." The last ground embraces what is claimed to have been an error in the description of the property ordered sold for the satisfaction of the mechanics' liens, whereby it is claimed the description includes part of a lot not affected by the liens, and that should not have been sold, or ordered sold for that purpose. And again, it is a proceeding on behalf of Jacob J. Richardson, in which he seeks to show cause against a judgment rendered against him while a minor, he having arrived at full within twelve months of its commencement. age The practice of awarding rehearings has uniformily been confined to courts of original jurisdiction; they are not awarded as a matter of right in appellate courts. The reason of this is not based upon any assumption of infallibility by such courts, but because, as stated by Ranney, J., in Longworth v. Sturges, 2 Ohio St. 104, "There must at some time be an end of litigation, not only for the benefit of the parties to each particular case, but to enable others standing behind them to have their rights determined." |