Gates v. Stebbins

Cuyahoga Circuit Court

Gates v. Stebbins

33 Ohio C.C. Dec. 334, 21 Ohio C.C. (n.s.) 236, 1905 Ohio Misc. LEXIS 410

DecidedNovember 24, 1905

StatusPublished

This text of 33 Ohio C.C. Dec. 334 (Gates v. Stebbins) is published on Counsel Stack Legal Research, covering Cuyahoga Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gates v. Stebbins, 33 Ohio C.C. Dec. 334, 21 Ohio C.C. (n.s.) 236, 1905 Ohio Misc. LEXIS 410 (Ohio Super. Ct. 1905).

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Opinion

HENRY, J.

Plaintiff’s wife and the defendant, Mrs. Stebbins, are sisters. Their father having made a will by which he gave each of them a house and lot, subsequently conveyed to them respectively the property so devised. The two properties were adjacent and of substantially equal value. Both deeds were executed the same day, but Mrs. Gates’ deed was delivered later than the other, with the intention, as is claimed, to discriminate against the latter. Both were warranty deeds given for a nominal consideration, and evidently for the purpose, as we think the evidence indicates, of treating both daughters equally in this distribution of his real estate.

Prior, however, to the making of these deeds, the father [335]*335borrowed money of Mrs. Gates’ husband and gave to him a mortgage on both properties. This suit is brought to foreclose the mortgage. At the outset, however, the plaintiff released his wife’s property from the lien of the mortgage, by which he admits that he has reduced the amount thereof one-half, but claims the right to enforce the lien for the remaining half on Mrs. Stebbins’ property.

The defendants seek to apply the doctrine of inverse order of alienation, whereby the entire burden of the mortgage would be made to rest on the property of Mrs. Gates, which is admittedly worth enough to respond thereto, if such be the law of this case.

The doctrine referred to is purely equitable, and is applied to save a purchaser for .full value, who is prior in time and in equity, from having to pay an additional consideration for his purchase. Sternberger v. Hanna, 42 Ohio St. 305.

It is not applicable to a case where equity and natural justice would be defeated by so doing (Patty v. Posee, 8 Paige’s Ch. 277 [35 Am. Dec. 683]. And we think it should not be applied in this case.

It is objected further that plaintiff and Mrs. Gates were incompetent to testify to facts antedating the death of the father. But the Ohio case before cited is authority to the contrary so far as Mrs. Gates is concerned, and no testimony of Mr. Gates to such transactions was introduced. There are other questions presented which we have examined but do not deem it necessary to discuss. Plaintiff may take a decree in accordance with this opinion.

Marvin and Winch, JJ., concur.

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HENRY, J.

Plaintiff’s wife and the defendant, Mrs. Stebbins, are sisters. Their father having made a will by which he gave each of them a house and lot, subsequently conveyed to them respectively the property so devised. The two properties were adjacent and of substantially equal value. Both deeds were executed the same day, but Mrs. Gates’ deed was delivered later than the other, with the intention, as is claimed, to discriminate against the latter. Both were warranty deeds given for a nominal consideration, and evidently for the purpose, as we think the evidence indicates, of treating both daughters equally in this distribution of his real estate.

Prior, however, to the making of these deeds, the father [335]*335borrowed money of Mrs. Gates’ husband and gave to him a mortgage on both properties. This suit is brought to foreclose the mortgage. At the outset, however, the plaintiff released his wife’s property from the lien of the mortgage, by which he admits that he has reduced the amount thereof one-half, but claims the right to enforce the lien for the remaining half on Mrs. Stebbins’ property.

The defendants seek to apply the doctrine of inverse order of alienation, whereby the entire burden of the mortgage would be made to rest on the property of Mrs. Gates, which is admittedly worth enough to respond thereto, if such be the law of this case.

The doctrine referred to is purely equitable, and is applied to save a purchaser for .full value, who is prior in time and in equity, from having to pay an additional consideration for his purchase. Sternberger v. Hanna, 42 Ohio St. 305.

It is not applicable to a case where equity and natural justice would be defeated by so doing (Patty v. Posee, 8 Paige’s Ch. 277 [35 Am. Dec. 683]. And we think it should not be applied in this case.

It is objected further that plaintiff and Mrs. Gates were incompetent to testify to facts antedating the death of the father. But the Ohio case before cited is authority to the contrary so far as Mrs. Gates is concerned, and no testimony of Mr. Gates to such transactions was introduced. There are other questions presented which we have examined but do not deem it necessary to discuss. Plaintiff may take a decree in accordance with this opinion.

Marvin and Winch, JJ., concur.

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Bluebook (online)

33 Ohio C.C. Dec. 334, 21 Ohio C.C. (n.s.) 236, 1905 Ohio Misc. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gates-v-stebbins-ohcirctcuyahoga-1905.