APPEALS.

[Butler Circuit Court,

January, 1896.]

Smith, Swing and Cox, JJ.

#### Wolf v. Coddington.

Appear Not Cut Oee by Sare Pendente Lite.

The conveyance of real property, the title of which is in dispute in the action, by a defendant to his wife, during the pendency of the suit, does not deprive him of his right to appeal from a decree that he has no title.

Appear from the Court of Common Pleas of Butler county.

On motion to dismiss appeal.

Smith, J.

We think it clear that Coddington had a perfect right to appeal this case, and to bring into this court all of the parties to the action, and that the case stands for hearing here upon all the issues made in the court of common pleas. At the commencement of the- suit the legal title to the real estate in question was in Coddington.' The action was brought by Wolf claiming that he, Coddington, had not the absolute title thereto, but. *672only held it as security for certain advances made by Coddington to Wolf, and tbat in equity he bad simply a lien in tbe nature of a mortgage for tbe amount so advanced, with interest, and tbe prayerwas tbat an account be stated between them, and tbe amount due.from Wolf to Coddington be ascertained. During tbe pendency of tbe action, Coddington conveyed tbe land to bis wife, who was then a party defendant to tbe action with her husband, by a general warranty deed. Tbe court decreed tbat Coddington only beld tbe land as security for tbe amount' due, and fixed tbat amount and ordered tbe land sold to pay it, and adjudged tbat Codding-ton pay one half of tbe costs.

*Millikin, Shotts and Millikin,*for motion.

*Judge Hume, contra.*

Surely Coddington bad a right to appeal from this decree. The judgment against him for costs, standing by itself, would entitle him to tbe appeal. But be bad tbe further right to appeal from tbe decree finding tbat he did not have absolute title and tbat he only beld it as security for advances, and from tbe decree finding tbe state of tbe account. Those were matters vitally affecting him. Tbe conveyance of tbe property by him to his wife pending tbe suit, cannot in any way affect tbe rights of the plaintiff, and we do not see how it deprives the original owner from litigating tbe issues made by him in tbe case, either to tbe court in which it is pending when be made tbe transfer, or in a court to which be takes it by appeal. He has tbe right, in the appellate court, still to claim tbat he was the absolute owner of tbe land when tbe suit was commenced, or that the decree of the court as to tbe amount due him from Wolf, was too small or too large, and tbat thereby his liability on his covenant of warranty might improperly be affected, and we think tbat this is warranted by the terms of section 5012, Revised Statutes, which provide, tbat “ upon any other transfer of interest, the action may be continued in tbe name of tbe original party, or tbe court may allow tbe person to whom the transfer is made, to be substituted for him.” No such substitution was made in this case, and in our view Coddington was warranted to defend in the common pleas, and to appeal the case to tbe circuit court, and again try tbe questions there.

The motion will therefore be overruled.