ADMINISTRATORS — WITNESSES.

[Franklin Circuit Court,

January Term, 1894.]

Stewart, Shauck and Shearer, JJ.

#### †Doney v. Dunnick’s Administrator.

1. Action by Administrator to Recover Vaetje oe Hand FraudueEntey Conveyed by Decedent wiee not Die.

An action will not lie in favor of the administrator of a deceased person against the» grantee in possession of real estate conveyed to him by the decedent with intent to» defraud his creditors, to recover the value of such real estate for the payment of the-debts of the intestate.

2. Remedy is by Action to Avoid Conveyance.

The remedy in such case is by civil action to avoid the fraudulent conveyance, and subject the land to sale under the provisions of secs. 6139 and 6140, Rev. Stat.

3. Grantee is a Competent Witness in such Case.

Such an action involves the validity of a deed within the meaning of sec. 5242, Rev. Stat., and the grantee is a competent witness to testify generally.

Error to the Court of Common Pleas of Franklin county.

Clark, as administrator *de bonis non*of the estate of William H. Dunnick,. deceased, for the purpose of obtaining money to pay the debts of said estate, brought his action in the court below against A. C. Doney to recover the value of certain real estate, situate in Franklin county, which he alleged had been fraudulently conveyed with intent to defraud the creditors of said Dunnick. The fraud alleged consisted in part in a conspiracy between said Doney and Dun-nick, in pursuance of which Dunnick procured a certain judgment and decree of foreclosure to be assigned to Doney, upon a secret trust for the benefit of Dun-nick, and a sale of said lands thereunder, and a conveyance by the sheriff of the title to said Doney, to be held upon such secret trust for the benefit of Dunnick.

*381The prayer of the'petition is -as follows:

‘‘Wherefore the plaintiff, as such administrator, prays the court for a decree that said Doney held said judgment and decree, and said premises, as trustee of said Dunnick, and that he unlawfully converted the same to his own use; that an accounting be had of the amount and value of said premises on the — day of ---, 1888, and that he may have judgment for said sum, with interest, and all other proper orders and judgments in the premises.”

The averments of the petition were put in issue by answer, and upon the trial the court found in favor of the plaintiff, and rendered judgment against Doney for the value of the land, including interest. A motion for a new trial was overruled, and a bill of exceptions brings upon the record the questions considered below.

†

The judgments of the circuit and common pleas courts were reversed by the Supreme Court, for error in excluding the testimony of plaintiff in error. See opinion, 55 O. S., 924

Shearbr, J.

1. This court, at a former term, held a fraudulent vendee liable in an action by the administrator of a fraudulent vendor for the value of the property, where the title thereto had been transferred to an innocent purchaser. But can this be ■done in this case ?

No doubt, were Dunnick living, and not *particeps criminis,*he might elect between the right to recover the property, and to sue for its value. But where the vendor or the equitable owner is deceased, no such right exists in favor of his personal representative. The powers of administrators in respect to the sale of the decedent’s real estate, are derived solely from statutory enactment; and the mode of procedure for their execution is also regulated by statute. 49 O. S., 593.

We know of no authority under which an administrator may recover of the fraudulent vendee in possession, the value of lands conveyed by an intestate with intent to defraud creditors. The mode of procedure in such case is pointed out in secs. 6136, 6137, 6139, *etseq.,*Rev. Stat. These provisions authorize an administrator to commence a civil action to obtain authority to sell the realista te of the decedent for the payment of his debts, and to include in such proceeding real estate which such decedent may have conveyed with intent to defraud his creditors; and this being the measure of his authority, he has no power to maintain an action for the value of such real estate.

If this be so, it follows that the court erred in rendering a judgment *in personam*against Doney for the value of the land. The relief to which the administrator was entitled, if any, was an order setting aside the conveyance to Doney, and directing the sale of the property, the proceeds to be administered in the payment of the debts of the decedent according to law; and for an accounting as to the rents and profits up to the date of Dunnick’s death, and a judgment against Doney for the amount thus ascertained — which relief might have been granted, disregarding the demand for a personal judgment, under the prayer for ‘‘all other proper orders and judgments in the premises.” The form of the prayer is not conclusive. Such relief as was warranted by the facts stated should have been given. *Chapman*v. Lee, 45 O. S., 357, 363, 367.

2. Upon the trial, the defendant was called as a witness in his own behalf to testify to facts occurring prior to the death of Dunnick. Objection was made to his testifying, on the ground that, as the adverse party was an administrator, he was incompetent. The objection was sustained, and he was not permitted to testify, and this is assigned for error.

Of course the general rule is, that a party is not a competent witness to testify generally where the adverse part}7 is an administrator of a deceased person. Sec. 5242, Rev. Stat.

But an exception to this rule is found in the last paragraph of said section, which reads as follows: ‘‘Nothing in this section contained shall apply to_ * * actions or proceedings involving the validity of a deed, ’ ’ etc. And we think this case falls within the exception.

The action was brought by Dunnick’s administrator to recover the value of lands which had been fraudulently conveyed by Dunnick, or through his procure*382ment, to Doney, with intent to defraud creditors; and the'plaintiff’s success or failure in the action depended upon the validity or invalidity of the deed under which Doney claimed and held title. If it was valid — made in good faith for a valuable consideration — the plaintiff had no cause of action; if it was invalid, he was entitled to relief. There seems no escape from the conclusion that the action directly involved the validity of a deed. *Murdock*v. McNeeley, 1 Ohio Circ., Deo. 9. This being so, Doney was a competent witness, and the court below erred in not permitting him to testify.

*Lf,e & Marriott,*for plaintiff in error.

*M. R. Patterson,*for defendant in error.

For error in rendering a personal judgment against Doney, and in holding that he was not a competent witness, the judgment will be reversed, and the cause remanded for a new trial.

Stewart, C. J., dissents from the third proposition of the syllabus, andfrom the judgment.