#### MELVIN *v.*MELVIN AND OTHERS.

Arrangement among heirs — trust estate — appeal by one of several defendants — account— continuance.

Where after the death of a fathei, the mother and adult children agree to dispose of a piece of land in Kentucky, and the personalty, and to vest the proceeds in other lands as a home for the family to hold as the other lands were held, and one of the sons pays the deficiency to complete the new purchase and takes the title to himself, he holds as trustee for Ills mother and his co-heirs; but his advance on account of the purchase and for taxes, is a charge upon the land.

*509In such case an account should be taken of the advances, and of the rents and profits, and the cause is not ready for hearing until that is done.

Where the Court of Common Pleas has decreed simply a perpetual injunction against one of the defendants, without ascertaining the rights of the other defendants, and the defendant enjoined *appeals:*quere, if the interests of the other defendants are bound by it, or if they remain with the injunction operating perpetually in their favor.

In such case the court will continue the case, and give time to the parties to advise upon the course to be pursued.

In Chancery. The complainant charges that her late husband died in Kentucky, in 1825, intestate, leaving eleven children, then all minors but the defendants, *James*and John, and possessed of a quantity of personal property and fifty acres of land: That the adult heirs agreed with their mother, to sell the Kentucky land and vest the proceeds in land in Ohio, for the joint benefit of all the heirs, for her residence during life; for her support; and to enable her to raise the young children. The Kentucky land was sold for $350, and conveyed by the complainant and her two adult sons, who also gave the purchaser a bond with surety, that the other heirs should release, as they come of age, or that there should be refunded to the purchaser, seven dollars, for every acre of the land that should be lost by their refusal, with interest: That the defendants, James and John, received the money, and also fifty dollars out of the personal property, and purchased one hundred and three acres of land in Brown county, Ohio, for $650; paid $400 down, and gave their notes for the balance $250. The complainant and family moved on to the land and still reside there: That by after arrangement between James and John, James paid up the balance of the land, took a conveyance to himself, and has brought ejectment for the possession: That the proceeds of the personalty which came to James’s hands were nearly or quite sufficient to pay for the land, or if otherwise, the complainant is willing and offers to make up the deficit. The bill make's all the .heirs defendants, and prays an injunction against the ejectment, a life estate in the one hundred and three acres, or possession until the youngest child is of age, and then to have her dower set off to her, and for general relief.

*James Melvin*answers, admitting the death of his father, the heirship, the sale of the land for $350, the bond for the infant heirs, the purchase in Ohio for $650, and deed to himself, the possession by the complainant and heirs, the ejectment, and the receipt of eighty-eight dollars of the personalty; but he denies the receipt of any other sum. He alleges, that he has paid expenses, and has other charges against the'complainant, reducing his receipts to twenty-nine dollars and fifty cents less than his portion of the personalty, and that of the $400 of the first payment for the land, twenty dol*510lars, was his own money; that the land was purchased for the heirs, but they and the complainant refused to contribute to pay the balance, or to keep down the taxes, or make repairs, or to pay rent, or to release to the Kentucky purchaser, wherefore he gave them notice, and brought the ejectment; that the contract was verbal, and conferred no interest without a release, though he is willing to convey if they release the portion in Kentucky. He charges that the complainant has received a large amount of personalty which has never been accounted for.

A guardian ad litem was appointed in the Court of Common Pleas -for the minor heirs, but no answer has been filed for them; nor have the other defendants answered. Four of the heirs are still minors. There is no replication.

The Court of Common Pleas decreed a perpetual injunction against James, who *appealed.*As to the other defendants, no appeal was taken.

By the Court.

The evidence shows an arrangement between the widow and her children to sell the property left by their deceased father in Kentucky, and to vest the proceeds in land in Ohio, to be held for the use of the family in the same way the land was *held*in-Kentucky. The land was sold in 1826, for $350, which James received, as he did also $30, part of a horse sold, and $88 of other personalty. He expended $11 24, in'collecting the $88. The land in Ohio was purchased in 1826, for $650, of which $400 was paid down, and notes given for $250, one half in one, and the other half in two years. The family was then moved on to the land with their goods, and have continued there ever since. James paid the $250, and in 1827 took a deed to himself. Pie has paid taxes up to .1833, amounting to $13 46. The case is here only as between the complainant and her son James, the appellant. As to all the other interests, it would seem the injunction of the Common Pleas was either perpetual and operative, or inoperative, leaving their interests undefended. The case is in such a situation that we do not see how to proceed. We think it clear that, inasmuch as by the agreement, the land in Ohio was to be held as the land in Kentucky was held, James took it in trust for his mother in lieu of her dower, and for himself and the other heirs of the fee, and that they were to pay their proportion of the taxes. There should be an account of the taxes, rents and profits; but as those having an interest are not in court, we will at present continue the cause to afford the parties leisure to advise upon their future steps.