Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in the Common Pleas to set-aside as fraudulent a deed made to defendant, Della Hambly, by her husband against whom plaintiff’s deceased husband had a judgment. Plaintiff, Jane D. Davies, was the executrix of her said deceased husband. Judgment was rendered for defendant and plaintiff appealed. Held:

1. It was competent for defendant to testify at the trial, even though plaintiff w'as an executrix, for the reason that 11459 GC. provides “Nothing in this section shall apply to . . . actions or proceedings involving the valdity of a deed.”

2. It appears from the evidence that defendant was the equitable owner of the real estate in question. A judgment creditor levying upon property has a lien on only such interest as the judgment debtor may have therein. Therefore plaintiff has no lien.

3. In order for plaintiff to obtain a decree she must prove that the transfer was in bad faith, that there was an insufficient consideration and also that defendant had knowledge of a fraudulent intent. This, plaintiff has failed to do. Petition dismissed.