McFarland v. Purper

Cuyahoga Circuit Court

McFarland v. Purper

31 Ohio C.C. Dec. 694, 17 Ohio C.C. (n.s.) 20, 1908 Ohio Misc. LEXIS 365

DecidedFebruary 3, 1908

StatusPublished

This text of 31 Ohio C.C. Dec. 694 (McFarland v. Purper) 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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McFarland v. Purper, 31 Ohio C.C. Dec. 694, 17 Ohio C.C. (n.s.) 20, 1908 Ohio Misc. LEXIS 365 (Ohio Super. Ct. 1908).

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Opinion

HENRY, J.

The question presented by this special appeal is whether the plaintiff having extended credit to William Purper, one of the defendants, on the faith of the latter’s record title to certain real estate, which the latter in fact held in trust for his wife, may resort to the property for the payment of his claim, the same having been reduced to judgment and having been a lien upon said land, if a judgment lien can attach under such circumstances.

Purper’s wife acquired the property in an amicable settlement of her parents’ estates by cross-deeds among the heirs, but caused or permitted the conveyance of her share to be taken in her husband’s name. The property has since from time to time been encumbered by mortgage, but we find nothing in these transactions to vary the interest and right of the wife as cestui que trust. She paid no particular attention to the state of the legal title as between herself and her husband, but her joinder in mortgages and her possession of tax receipts affected her with notice of and acquiescence in her husband’s custody of the [695]*695title. He made representations to the plaintiff that he was the owner of the property, bnt there is no evidence that these representations were known to the wife, or that she by any affirmative conduct induced the plaintiff to extend credit to her husband.

On this state of facts the rule is as expressed in the first paragraph of the syllabus in Wright v. Franklin Bank, 59 Ohio St. 80 [51 N. E. 876] that lands held in trust can not be sold on execution for the payment of the debts of the trustee, and judgments against such trustee are not liens upon such lands.

See also: Manley v. Hunt, 1 Ohio 257; Minns v. Morse, 15 Ohio 569 [45 Am. Dec. 590] Butler v. Brown, 5 Ohio St. 211; Lefferson v. Dallas, 20 Ohio St. 68; Churchill v. Little, 23 Ohio St. 301, 308; Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. 572; 2 L. R. A. 753; 15 Am. St. 562],

The petition is therefore dismissed.

Marvin and Winch, JJ., concur.

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HENRY, J.

The question presented by this special appeal is whether the plaintiff having extended credit to William Purper, one of the defendants, on the faith of the latter’s record title to certain real estate, which the latter in fact held in trust for his wife, may resort to the property for the payment of his claim, the same having been reduced to judgment and having been a lien upon said land, if a judgment lien can attach under such circumstances.

Purper’s wife acquired the property in an amicable settlement of her parents’ estates by cross-deeds among the heirs, but caused or permitted the conveyance of her share to be taken in her husband’s name. The property has since from time to time been encumbered by mortgage, but we find nothing in these transactions to vary the interest and right of the wife as cestui que trust. She paid no particular attention to the state of the legal title as between herself and her husband, but her joinder in mortgages and her possession of tax receipts affected her with notice of and acquiescence in her husband’s custody of the [695]*695title. He made representations to the plaintiff that he was the owner of the property, bnt there is no evidence that these representations were known to the wife, or that she by any affirmative conduct induced the plaintiff to extend credit to her husband.

On this state of facts the rule is as expressed in the first paragraph of the syllabus in Wright v. Franklin Bank, 59 Ohio St. 80 [51 N. E. 876] that lands held in trust can not be sold on execution for the payment of the debts of the trustee, and judgments against such trustee are not liens upon such lands.

See also: Manley v. Hunt, 1 Ohio 257; Minns v. Morse, 15 Ohio 569 [45 Am. Dec. 590] Butler v. Brown, 5 Ohio St. 211; Lefferson v. Dallas, 20 Ohio St. 68; Churchill v. Little, 23 Ohio St. 301, 308; Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. 572; 2 L. R. A. 753; 15 Am. St. 562],

The petition is therefore dismissed.

Marvin and Winch, JJ., concur.

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31 Ohio C.C. Dec. 694, 17 Ohio C.C. (n.s.) 20, 1908 Ohio Misc. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfarland-v-purper-ohcirctcuyahoga-1908.

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