#### McEntire *v.*McEntire et al.

*Divorce and alimony*— Enforcement *of alimony judgment*— Resti*tution of property obtained under separation*agreement— *Evidence*— Competency *of witnesses*— Communications *between husband and wife*— Section *11988, General Code*— Priv*ileged communications*— Section *11494, General Code, inapplicable*— Agreement *for alimony and separation.*

1. In an action in the nature of a creditor’s bill, to enforce collection of a judgment for alimony obtained by the wife against the husband, a court of equity has power before enforcing such judgment to make a conditional decree requiring the wife to make restitution of property obtained in lieu of alimony theretofore agreed upon with her husband, or, if restitution be not made, to enjoin the collection of the judgment for alimony upon the cross-petition of the husband; it being inequitable to permit the wife to enforce the judgment for alimony and at the same time retain the property obtained by the agreement. The maxim, “He who seeks equity must do equity,” is held applicable. *(DeWitt*v. *DeWitt, 67*Ohio St., 340, 66 N. E. Rep., 136, distinguished.)

2. Where husband and wife, who have been living separate and apart for some months, enter into an oral agreement of separation and adjustment of property interests relative to alimony, support, etc., which was to be later reduced to writing and signed, and the husband performs his part of such agreement by conveying to the wife the property agreed upon, she accepting and keeping the same even though refusing to sign the agreement after being reduced to writing, and the parties continue to live separate and apart, and all marital relations incident to coverture are abandoned, under such circumstances communications between the husband and wife not in the known presence of a third person competent to be a witness concerning such agreement for alimony and separation and releasing of rights, claims and duties arising out of their marital relations, are within the spirit of Section 11988, General Code, providing that husband and wife are competent witnesses in divorce and alimony cases; and such communications are not privileged *511within the terms of paragraph 3, Section 11494, General Code, making communications between husband and wife during coverture inadmissible.

(No. 17675

Decided May 8, 1923.)

Error to the Court of Appeals of Cuyahoga county.

This was an action in the court of common pleas of Cuyahoga county brought by Ola M. McEntire to collect a judgment for alimony against her husband, Mort G. McEntire, and others, and to subject certain real estate and other claimed property interests of Mort Gr. McEntire to the payment of the judgment.

After the trial in the court of common pleas the case was taken on appeal to the Court of Appeals of Cuyahoga county, which court made in substance the following finding of facts :

“(1) On the 9th day of January, 1920, said plaintiff, Ola M. McEntire, and said defendant, Morton Gr. McEntire, who is also known as Mort G. JMoEntire, were wife and husband, they having intermarried several years prior to that time, but on said 9th day of January, 1922, were living separate and apart, and had been so living for several months prior to that time, and thereafter continued so to live.

*“ (2)*During their married life said plaintiff and said defendant by their joint and several efforts had accumulated considerable property and on said date were the owners each of an undivided one-half interest in common and in fee simple of the following described real estate and premises and hereinafter *512referred to as parcel No. 1: [Description of Sixty-Sixth street property omitted.]

“Said parcel of property at said time was of the reasonable price and value above the amount of the mortgage indebtedness thereon, of approximately $10,000.

“Said two parties at said time were also the joint owners each of an undivided one-half interest in the furniture and fittings in the house located on said premises, which was then occupied and. being used as a rooming house, which said furniture and fittings were then of the reasonable price and value of $2,000, or thereabouts. Said two parties at said time were also the owners in fee simple of the following described real estate and premises, the legal title thereof at said time being in the name of' Rose McEntire, the sister of said defendant, viz.: [Description of East Sixty-Fifth street property omitted.]

“Said two parties at said time also owned leasehold interests in and furniture and rooming house equipment in certain other parcels of property located in the city of Cleveland, and the reasonable price and value at said time of said real estate last above described, together with their rights and interest in said other parcels held on lease as aforesaid, was the sum of $8,000, or thereabouts.

“ (3) On or about said 9th day of January, 1920, a conversation was had between said Ola M. McEntire and Morton 0. McEntire, not in the known presence of any other person, at which time it was orally agreed between said parties, among other things, that said Morton G-. McEntire should convey to said Ola M. McEntire the undivided one-half in*513terest in common then owned hy said Morton GL Me-Entire in and to the real estate and premises hereinbefore described as parcel No. 1, and should also relinquish to her all his right, title, and interest in and to the furniture and equipment in said premises, and that in consideration thereof said Ola M. McEntire should release said Morton Gr. McEntire from any and all claims for maintenance and support and from all other rights, claims and duties arising or growing out of the said marital relations then existing between them, and that each of said parties might thereafter will or otherwise dispose of his or her own property by gift, deed, or last will and testament, and that all of the other said property then owned by said parties, including said parcel of property hereinbefore described as parcel No. 2, should be, and should be deemed as, the sole property of said Morton Gr. McEntire, free from any right, title, interest or claim therein in favor of said Ola M. McEntire, and that each of said parties should be barred from any and all claims or rights by way of dower, inheritance, descent, year’s allowance, and any other rights or claims whatsoever in and to the estate of the other, whether then owned or thereafter acquired; it having been further then and there agreed that from and after said date said two parties should live separate and apart. At said time it was further agreed between said parties as aforesaid that the said oral agreement between them should be reduced to writing and incorporated in formal articles of separation to be signed by both of said parties.

“(4) Relying upon the oral agreement made as set forth in the next preceding paragraph and upon *514the promise of said Ola M. MeEntire to sign a formal written agreement setting forth the terms of their said oral agreement, said Morton Gr. Me-Entire duly prepared, executed, and delivered a quitclaim deed of his undivided one-half interest 3n said real estate and premises hereinbefore described as parcel No. 1, and delivered the same to the recorder of Cuyahoga county for record, and the same is recorded in volume 2212, page 468, of Cuyahoga County Records of Deeds and Mortgages, and thereby said Ola M. MeEntire vested of the entire fee-simple title in and to said premises. At said time said Morton G-. MeEntire also orally relinquished and released to said Ola M. MeEntire his rights and interests in the furnishings and equipment in said property and has since made no claim thereto, except as set forth in his pleadings in this cause, and at all times since said date said Ola M. MeEntire has been in the undisputed possession and control of said real estate and the said furnishings and equipment located therein.

“(5) At or about the same time that said Morton G-. MeEntire caused said quitclaim deed to be prepared as aforesaid, he also had his attorney prepare a formal written contract or memorandum of agreement setting forth the terms of the agreement between him and said plaintiff as hereinbefore found and submitted the same to said plaintiff. Said plaintiff, however, after several days’ delay, refused to sign such formal agreement, and repudiated and denied, and at all times since has denied, that she made any contract or agreement of separation and for the division of property as hereinbefore found.

*515“ (6) On or about the 21st day of May, 1920, said plaintiff filed an action in the common pleas court of Cuyahoga county, Ohio, being case No. 179807, for alimony only against said defendant, Morton G. McEntire, and summons in said action was served upon said Morton G. McEntire, personally.

“ (7) Subsequent to the service of summons upon said Morton G. McEntire as found in the next preceding paragraph and before said defendant was required to answer in said cause, said plaintiff and said defendant, Morton G. McEntire, had a conversation, also not in the known presence of any third person, in the'course of which conversation said defendant criticized said plaintiff for filing said alimony action against him and called to her attention the agreement for settlement made between them on or about January 9, as hereinbefore found. Said plaintiff then stated to said defendant that she would drop her claim for alimony.

“ (8) Shortly subsequent to the conversation between said parties as found in the next preceding paragraph, said defendant, Morton G. McEntire, left the state of Ohio for Los Angeles, Cal., where he has since resided.

“(9) On or about the 16th day of November, 1920, said plaintiff filed an amended petition in said common pleas cause No. 179807 and in said petition prayed for divorce and alimony against said defendant, Morton G. McEntire, and service on said amended petition was effected upon said defendant by publication as provided by law, and a copy of said publication setting forth in substance the prayer of said petition was mailed to said defendant as provided by law, to his residence address at *516Los Angeles, Cal., and was actually received by him.

“ (10) Said defendant, Morton G. McEntire, however, relied upon the statement made by said plaintiff as hereinbefore found that she would drop her claim for alimony against him and believed that the sole purpose of said plaintiff in filing said amended petition was to obtain a divorce from him rather than alimony, and did not answer said amended petition or otherwise enter his appearance in said action, and did not have actual knowledge that any decree for alimony was to be rendered in said action against him until after the present pending case had been filed and receiver had been appointed to take charge of his property, as will appear from the record of the docket and journal entries in this action.

“ (11) Said action for divorce and alimony instituted by plaintiff as aforesaid was heard by the common pleas court some time in February, 1921, and under date of March 2, 1921, a decree was entered and rendered in said action divorcing said plaintiff from said defendant and in addition awarding her alimony in the sum of $8,000.

“ (12) The present action was then instituted by said plaintiff in the common pleas court to subject the real estate hereinbefore described as parcel *No.*2, the title of which then stood of record in the name of said Rose McEntire, sister of said defendant, Morton G. McEntire, and also certain notes and chattel mortgages which were then being held by the Lake Shore Banking *&*Trust Company to the credit of said Rose McEntire for collection, which notes and chattel mortgages were part of the proceeds of the sale by said Morton G. McEntire of the *517properties held on lease, and the furniture and equipment therein owned fully appear from the pleadings, docket and journal entries in and the record of this cause. No part of said judgment or decree for alimony in said common pleas case No. 179807 above referred to has been paid, and there is now unpaid thereon and due, except as herein-before otherwise provided, inclusive of costs in said action, the sum of $8,021.85, with interest at the rate of 6 per cent, per annum from the 2d day of March, 1921, and except as hereinafter otherwise provided, said judgment is now in full force and effect.

“ (13) Said Morton G-. McEntire is the real and equitable owner of the real estate and premises hereinbefore described as parcel No. 2, and also of the notes and chattel mortgages and proceeds thereof now in the hands of the receiver heretofore appointed in this action, except that the legal title thereof is held by said Eose McEntire, also a defendant in this action, subject to and as security for an indebtedness to her from said defendant, Morton Gr. McEntire of $1,600, with interest at the rate of 6 per cent, per annum from the 1st day of January, 1921.

“There is due said defendant, the Union Trust-Company, upon the note and mortgage set up by it in its answer and cross-petition herein, the sum of $1,880, with interest at 6 per cent, per annum, payable quarterly, from March 15, 1922, and for said sum by virtue of said note and mortgage said defendant has the first and best lien upon the premises hereinbefore described as parcel No. 12.

“(14) Except as hereinbefore otherwise found to the contrary, the court further finds the facts to *518be as averred in the various pleadings making up the issues of this action.”

Upon this finding of facts the Court of Appeals made certain conclusions of law, among which is the following:

“1.. There was fraud upon the part of said plaintiff in the manner in which her said judgment or decree for alimony was obtained, and there would be no consideration for the transfer made to her on or about January 9, 1920, as hereinbefore found, by said Morton Gr. McEntire, of his one-half interest in said real estate hereinbefore described as parcel No. 1 and of his interest in the personal property, furniture, and equipment located therein if he is compelled to pay said judgment for alimony, and that it would be inequitable and unconscionable to permit said plaintiff to enforce said judgment and at the same time retain the interest and title in said real estate hereinbefore described as parcel No. 1, and the furniture and equipment therein conveyed and released to her on or about January 9, 1920, by said defendant as hereinbefore found.”

The Court of Appeals rendered a decree based on the findings of fact and law set forth in the printed record to the effect that the plaintiff, Ola M. McEntire, should be perpetually enjoined from enforcing her judgment for alimony unless she first did equity by reconveying to the defendant the property which he had conveyed to her in performance upon his part of the terms of the separation agreement made between them on January 9, 1920, and gave her a reasonable time within which to elect whether she would return this property and enforce her *519judgment, or keep the property and forego the right to her judgment.

A motion for a new trial was filed by Ola M. McEntire, which was overruled, and a. decree was entered by the Court of Appeals. To reverse this decree and judgment Ola M. McEntire now prosecutes error in this court.

*Mr. Wm. H. Chapman,*for plaintiff in error.

*Messrs. White, Brewer & ¡Curtis,*for defendants in error.

Day, J.

The questions of law arising upon the foregoing record, and grounds of error complained of, are as follows:

“First. The testimony of communications between husband and'wife not in the known presence or hearing of a third person competent to testify were incompetent by the provisions of Section 11494 of the General Code.

“Second. The court had no power to make the collection of plaintiff’s judgment for alimony conditional on her conveying certain real estate to defendant.

“Third. The defendant, having failed to assert his claim of a separation agreement and release of claim for alimony in the divorce and alimony action, was precluded from utilizing the same in a subsequent suit.

“Fourth. The findings of fact and the admitted facts show no fraud on the part of plaintiff iñ obtaining her judgment for alimony, which entitle defendant to relief.

*520“Fifth. The court was without power to modify the judgment for alimony to conform to its opinion as to the proper amount by an alternative writ of injunction.”

Taking up the above questions in the order of their presentation, did the Court of Appeals err in admitting the testimony of the defendant Mort G. McEntire, as to conversations between himself and his wife relative to the so-called “separation agreement”?

The claimed incompetency of this testimony is based upon the provisions of paragraph 3, Section 11494, General Code, which reads:

“The following persons shall not testify in certain respects: * * * (3) Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness. The rule shall be the same if the marital relation has ceased to exist.”

The first communication referred to, of which complaint was made, as to the nature of which the husband testified, relates to the so-called “oral agreement” between the parties of January 9,1920, whereby, among other things, Morton G. McEntire conveyed to Ola M. McEntire his undivided one-half interest in the property owned in common, known as parcel No. 1, and all his interest in the furniture and equipment in the premises, in consideration whereof “said Ola M. McEntire should release said Morton G. McEntire from any and all claims for maintenance and support and from all other rights, *521el aims and duties arising or growing out of the said marital relations then existing between them.” (Finding of Fact No. 3.) The second communication complained of relates to the fact that shortly after Ola M. McEntire filed her petition for alimony on May 21, 1920, the parties had a conversation, also not in the known presence of any third person, in the course of which Morton G. McEntire criticized his wife for filing her alimony action against him, and called to her attention the agreement for settlement made between them on or about January 9th above referred to; the wife then stating to her husband that she would drop her claim for alimony. (Finding of Fact No. 7.)

It is therefore apparent that they were talking about maintenance, support and rights of alimony —the very matters that were involved in the petition for alimony and the amended petition for alimony and divorce.

Section 11988, General Code, provides:

“The parties, notwithstanding their marital relation, shall be competent to testify in actions and proceedings under this chapter to the same extent that any other witness might.”

The instant case was an action in the nature of a creditor’s bill to enforce the collection of a judgment for alimony obtained by the wife against the husband. It is therefore to that extent a proceeding to enforce or collect or secure the fruits of an action for alimony brought by favor of chapter 3, tit. TV, div. VII, General Code. In a divorce or alimony action the terms of Section 11988, General Code, would permit both husband and wife to testify fully on all subjects pertaining to their property *522and the grounds of the action notwithstanding their marital relations. Clearly, if the judgment for alimony was secured in a suit wherein husband and wife were competent to testify upon the subject of their property and their agreements as to maintenance, support, alimony, and so forth, the spirit if not the letter of the section which permits such testimony should apply in an action to enforce the collection of a judgment for alimony thus secured. The conversations objected to referred to the subject of alimony, and the agreement which the husband claimed was the means by which the wife secured his interests in their common property, known as parcel No. 1, and his interest in the furniture and equipment in the premises. This agreement goes to the very gist of the matter in dispute between the parties, to-wit, the right of the wife to collect the judgment for alimony secured against her husband. To deny the husband the right to show the nature of the agreement as to alimony would be to deprive him of the very privileges that are sought to be given both parties by virtue of Section 11988, General Code. To exclude this testimony would be but to add to the fraud which the husband claims exists upon the part of the wife in the manner in which her judgment or decree for alimony was obtained, and there would be no consideration for the transfer of his property made to her on or about January 9,1920, and it would be tantamount to compelling him to pay the judgment for alimony, while at the same time permitting the wife to retain the interest and title in the real estate described as parcel No. 1, and the furniture and equipment therein, conveyed and released to her on or about January 9, 1920. *523This in onr judgment, would be denying justice and equity to the husband and would be contrary to the spirit of Section 11988, General Code, which in proceedings in divorce and alimony permits parties to testify concerning communications to the same extent that any other witnesses might.

We do not mean hereby to curtail the rule of privileged communications between husband and wife, but we do think where husband and wife have been living separate and apart for some months and enter into an oral agreement for separation and adjustment of property interests relative to maintenance, alimony and support, which later is to be reduced to writing and signed, and the husband performs his part of such agreement by conveying to the wife the property agreed upon, and she accepts and keeps the same, even though refusing' to sign the agreement after being reduced to writing, and the parties continue to live separate and apart and all marital relations incident to coverture are abandoned, that under such circumstances communications between them, not in the known presence of a third person competent to be a witness, concerning said agreement of separation, alimony and releasing of rights, claims and duties arising out of their marital relations, are not privileged within the terms of paragraph 3, Section 11494, General Code.

We therefore find that the Court of Appeals did not err in admitting evidence of such communications.

The next question to be determined is: Did the Court of Appeals have power to malee the collection by plaintiff in error of her judgment for alimony conditional upon her conveying certain real estate *524to the defendant in error? The third assignment of error as presented by the plaintiff may be considered in conjunction therewith, to-wit, that the “defendant, having failed to assert his claim of a separation agreement and release of claim for alimony in the divorce and alimony action, was precluded from utilizing the same in a subsequent suit.” These two assignments of error may be considered together as they are based upon the .same general legal and equitable principles. This was an action in the nature of a creditor’s bill, brought by Mrs. Ola M. McEntire to collect a judgment for alimony against her husband. It was an equitable action and she was appealing to the chancery powers of the court to secure relief. The Court of Appeals found that she had made an agreement with her husband as to her right to recover alimony, which seems just, fair, and reasonable to the wife, and that before she could insist upon the judgment for alimony she must convey to her former husband the property that she had received by virtue' of the agreement in question. In other words, the court applied that well-recognized maxim of equity that “He who seeks equity must do equity.” “This maxim expresses a cardinal principle, and is one of the oldest in equity jurisprudence. It is of most extensive application, being applicable to all classes of cases whenever necessary to promote justice.” (21 Corpus Juris, 172.) As was said in 1 Pomeroy’s Equity Jurisprudence (4 Ed.), Section 388:

“It may be regarded as a universal rule governing the court of equity in the administration of its remedies, that whatever may be the nature of the relief sought by the plaintiff, the equitable rights of *525the defendant growing out of or intimately connected with the subject of the controversy in question will be protected; and for this purpose the plaintiff will be required, as a condition to his obtaining the relief which he asks, to acknowledge, admit, provide for, secure, or allow whatever equitable rights (if any) the defendant may have, and to that end the court will, by its affirmative decree, award to the defendant whatever reliefs may be necessary in order to protect and enforce those rights,”

Our attention is called to the case of *DeWitt v. DeWitt,*67 Ohio St., 340, 66 N. E., 136, upon the doctrine that an award of alimony cannot be made conditional on the wife’s conveying any property to the husband. We are entirely content with the conclusions of the court in that ease, but it must be noted that that case was an action for divorce and alimony, and the rights of the parties were being determined in the light of the statute governing such cases; while in the instant case the record discloses that the equity powers of the court are being invoked to assist in securing the collection of a judgment for alimony, and that the cross-petitioner claims that the judgment in question is the result of a fraud perpetrated upon him. The learned judge deciding the *DeWitt case*clearly indicates in the light of our alimony statutes, the distinction that prevailed between the equity powers of a court of chancery and the powers derived from the ecclesiastical courts. In this case a court of equity whose jurisdiction had been invoked was empowered to go fully into the matter and give full and complete relief. This it proceeded to do and applied the principle above set forth that, “He who seeks equity *526must do equity,” and in so doing we think the Court of Appeals committed no error. Having both parties before it, and having sought to give relief, the relief should be full and complete. It is not enough to say that the defense of the oral agreement as to alimony should have been set up in the divorce and alimony proceedings', for the very fraud complained of was the reason why the same was not done, to-wit, the husband’s reliance upon the wife’s agreement not to secure alimony but to rely on their agreement. Finding a fraud to exist, as the Court of Appeals did, it had a perfect right to consider the oral agreement in the action instituted by the wife to collect her judgment, just the same and as fully as though it had been set up in the divorce and alimony proceeding.

The defendant was not seeking to have the judgment for alimony set aside, and the Court of Appeals doubtless could not directly modify that judgment, but it could, however, enjoin the collection thereof until equity had been done in the premises. 2 Freeman on Judgments (4th Ed.), Section 486.

From the same authority we quote the following as particularly pertinent:

Section 492. “It has frequently happened that one of the parties litigant has failed to present his claim or defense because he relied upon some agreement or understanding between himself and his adversary, which, if observed, rendered such presentation unnecessary. And with more than occasional frequency, if we may judge from the reports, these agreements have been designed to lull a party into security and inactivity in order that some unconscionable advantage could be taken of him. In all *527such, eases, courts of equity, when asked to do so, have invariably restored the injured party to his rights under the agreement, and have wrested from his opponent all those fruits he had hoped to harvest and enjoy through fraud and duplicity. # * * The principle that taking judgment in opposition to an agreement or representation of a party or his attorney is such a fraud that the parties will be restored to their former position is applicable whenever the defendant, on account of the agreement, fails to answer, or after answering fails to attend, the trial.”

We therefore feel that no error has intervened by the action of the Court of Appeals in this regard.

The fourth ground of alleged error is that the findings of fact and the admitted facts show no fraud on the part of the plaintiff in error in obtaining her judgment for alimony, such as would entitle the defendant to relief.

The relief granted by a court of equity upon the grounds of fraud is so full, and the jurisdiction attaching by reason of the fraud so broad, that we have no hesitancy in saying that the conclusions of law reached by the Court of Appeals upon the facts found by it show sufficient fraud in obtaining judgment for alimony, and that its conclusions in the premises thereon were correct.

The last ground of error complained of is that the “court was without power to modify the judgment for alimony to conform to its opinion as to the proper amount by an alternative writ of injunetion.”

*528What we have said above in regard to the powers of a court of equity to make a conditional decree applies to this ground of error, and we decline to disturb the decree of the court below upon this ground.

Upon a full consideration of the entire record, we are of opinion that no prejudicial error has intervened in this cause, and the decree of the Court of Appeals is therefore affirmed.

*Judgment affirmed.*

Marshall, C. J., Wanamaker, Robinson, Jones, Matthias and Allen, JJ., concur.