Rathmell v. Shirey

• Court: United States State Supreme Court of Ohio
• Citation: 60 Ohio St. 187,53 N.E. 1098
• Parties: RATHMELL v. SHIREY et al.
• Decision Date: 25 April 1899

60 Ohio St. 187
53 N.E. 1098

RATHMELL
v.
SHIREY et al.

Supreme Court of Ohio.

April 25, 1899.

Error to circuit court, Franklin county.

Action by Rathmell, executor, against William C. Shirey and others. Judgment for defendants, and plaintiff brings error. Modified.

The cause was tried in the circuit court upon appeal from the court of common pleas. The plaintiff in error prayed for a decree of the court setting aside a deed for 100 acres of land, made by his testator to the defendant Thomas Rathmell, in trust for the defendant William C. Shirey and others, and an order for its sale for the payment of debts of his testator, alleging in his petition and amendments thereto the insufficiency of the assets of the testator to pay his debts; that the instruments in question was signed by the testator contemporaneously with the execution of his will, and upon no consideration except that expressed, to wit, love and affection for his son William and one dollar; that said instrument was not then, nor ever in the lifetime of the testator, delivered to said trustee, but was delivered as an escrow to one Zeno C. Payne, to be by him placed on record, and delivered to said trustee after the death of said testator, the testator remaining in possession and control of the premises, and paying taxes thereon until his death, a portion of his debts being contracted after the signing of said instrument, and credit being extended to him on account of his apparent ownership of said premises; and that said deed delivered to said trustee after the death of the plaintiff's testator was fraudulently made, and that it hinders, delays, and defrauds his creditors. The answer admitted the insufficiency of the assets of the testator's estate to pay his debts. On denial by the defendants of the plaintiff's allegations as to the fraudulent character and effect of the instrument, the cause was tried in the circuit court, where, upon request, the conclusions of fact and law were separately stated as follows:

‘That on the 4th day of December, 1891, Lewis Shirey, then in full life, was seised of 160 acres of land in Hamilton township, Franklin county, Ohio, upon 60 acres of which there was a mortgage incumbrance of $1,500. That on said December 4, 1891, said Shirey executed a trust deed to Thomas Rathmell for the remaining 100 acres thereof, for the use of his son, William C. Shirey, for life, remainder to the children of William C. Shirey. That on the same day he executed his will disposing of 60 acres, the remainder of his land, the same being charged with the mortgage incumbrance aforesaid, to his daughter, Margaret Thompson. That at the time of the execution of said deed, to wit, December 4, 1891, he delivered the same to one Zeno C. Payne, his attorney, who made the following indorsement thereon in said Shirey's presence, to wit: ‘Deposited with me in escrow, to be placed on record at the death of the grantor and delivered to the grantee therein named. Z. C. Payne.’ At the time of said indorsement said Shirey instructed said Payne to place this deed on record at the time of his death, and deliver the same to the grantee therein named. That at the time of the execution of said deed and will, in addition to the mortgage incumbrance of $1,500, Shirey was indebted to divers persons in the sum of $500, which, in...