Kready v. McVicker , 2 Ohio Law. Abs. 76 ( 1923 )

FUNK, J.

Epitomized Opinion

First Publication of this Opinion

This action was commenced in Wayne Common Pleas by children, as heirs at law, of S. C. McVickers, deceased, who died intestate, for partition of a house and lot, and for an account of the rents and profits of the premises, as against C. D. McVicker, who occupied the premises from 1913 till the time of the trial. C. D. McVicker, by cross-petition, alleged that his grandfather and himself bought this property in 1905 with the understanding that his father and mother, his grandfather and himself were to live in the premises, that he was to care for his parents during their life time but upon their death he was to become the sole owner of the property. He further alleged that he had carried out this agreement and had also paid the taxes and made repairs on the property. At the trial the cross-petition was dismissed. McVicker perfected an appeal and filed a petition in error, asking the court to determine whether the case is appealable, and if so to hear it on appeal. In affirmling the judgment, the Court of Appeals held:

1. “There can be no doubt that this case is appealable under the law of Ohio.” 93 OS. 443.

2. The cross-petition is in the nature of an action to quiet title on an oral understanding or agreement for the transfer of the title, and the burden is upon the cross-petitioner to prove the allegation. C. D. McVicker has not sustained the burden of proof by the evidence.