#### W. C. McBride, Inc., *v.*Murphy et al.

*Court of appeals*— Appellate *jurisdiction*— Chancery *case*— Peti*tion to quiet title and for damages hy one not in possession —Cross-petition to quiet title*— Insufficient *evidence to support recovery for money.*

(No. 18381

Decided December 16, 1924.)

Error to the Court of Appeals of Monroe county.

The Murphys, defendants in error here, brought, suit in the common pleas court against McBride, Incorporated, and others, seeking to quiet their title to fifteen-sixteenths of all the oil and gas produced from certain premises described in their petition. The petition alleged that McBride, Incorporated, took possession and was ' operating the premises for oil and gas and appropriating to its use the oil and gas produced therefrom; that it had no lease, claim, or title to the oil and gas produced, nor any right to hold and use the premises for the production of the same. In a second cause of action a money judgment was sought against the defendant, McBride, Incorporated, in the sum of $952.48, on an account for oil produced and sold by it. The petition ■ further alleged that one E; J. Harper also claimed some title or interest in the premises, and asked that he be required to set up the same. Plaintiffs prayed that the claims of W. C. McBride, Incorporated, be declared null and void and that their title to the oil and gas produced be quieted against that defendant. There was also a prayer for the money judgment referred to and for an order against a pipe line company restraining it from running the oil produced from *444the premises to the credit of McBride, Incorporated, and for other relief.

The defendants, Harper, and McBride, Incorporated, both answered, each claiming to be the owner of the oil and gas produced from the real estate, and each praying that the title thereto be quieted in him. McBride, Incorporated, filed a cross-petition in which it claimed to be the owner of the oil and gas lease in question, which it alleged was executed by Murphy and his wife to Harper on March 22, 1902, and claimed that said lease had been transferred by mesne assignments to it, the answering defendant. The cross-petition further alleged that the defendant McBride, Incorporated, was in possession of the real estate described in the petition and was operating the premises for oil and gas purposes; that the plaintiffs, the Murphys, claimed an estate or interest therein adverse to the rights of the cross-petitioner. The cross-petition prayed that the plaintiffs be compelled to set up any adverse claim they might have; that the same be adjudged null and void; that the answering defendant’s title to said oil and gas lease and leasehold estate be quieted as against the plaintiffs and for all proper relief. The answer and cross-petition also contained a defense to plaintiffs’ second cause of action. This defense denied each and every allegation contained therein.

In plaintiffs’ reply to the cross-petition they set up a former adjudication. They alleged that the oil and gas lease made by them to Haiper, dated March 22, 1902, was set aside on December 5, 1902, by the decree of the then circuit court of Monroe county, in a ease entitled *Charles W. Murphy*v. *Unity Oil Co. et al.;*that by force of such decree the *445title was at that time quieted in the Unity Oil Company against the plaintiffs and other defendants ; that by virtue of that decree the title acquired by McBride, Incorporated, from its privies in title was invalid. There are other allegations contained in the pleadings which do not materially affect the question under consideration.

The cause was heard by the common pleas court, which entered a decree quieting the title to the premises in the defendant, McBride, Incorporated, plaintiff in error. Thereupon the Murphys appealed the cause to the Court of Appeals. In that court McBride, Incorporated, filed a motion to dismiss the appeal. This motion was overruled by the appellate court, aud thereupon that court heard the case and found on the issues joined in favor of the Murphys, the plaintiffs below. It was adjudged by the court that the plaintiffs were entitled to the relief prayed for; that the oil and gas lease of McBride, Incorporated, upon the premises described in plaintiffs’ petition, was null and void. It was further decreed that plaintiffs’ title to the fifteen-sixteenths of the oil and gas produced be quieted against the claims and demands of Me Bride, Incorporated, and the court enjoined the pipe line company from running oil produced from the real estate to the credit of that defendant. The decree of the court also found that there was due plaintiffs from McBride, Incorporated, the sum asked for in plaintiffs’ petition, and rendered judgment for that amount. Thereupon McBride, Incorporated, instituted proceedings in error in this court.

*Messrs. Moore, Be Vend S Moore,*for plaintiff in error.

*446
      *Mr. Wm. H. Cooke*and *Messrs. Lynch & Lynch,*for defendants in error.

By the Court.

On the issues joined by the pleadings the Court of Appeals found in favor of the plaintiffs, the defendants in error here, and with that finding we are not disposed to interfere.

This cause was certified to this court because of the claim made by plaintiff in error that the action instituted in the court of common pleas was not a chancery case, and was therefore not subject to appeal; that the Court of Appeals erred when it overruled the motion of defendant in error McBride, Incorporated, to dismiss the appeal.

The petition of plaintiffs below alleged they were ou.t of possession. However, the cross-petition of the defendant was a bill *quiet timet,*or what is known to our Code as an action to quiet title. The cross-petition alleged possession in the answering defendant, and asserted that the plaintiffs claimed title to and an interest in the premises in question. In the case developed by the pleadings the claim of title made by the plaintiffs was a cloud upon the title of the defendant, which it had a right to remove. If, under the former decisions of this court, the plaintiffs, because out of possession, could not have their remedy in chancery, but were relegated to an action in ejectment, it appears nevertheless that if the cross-petitioning defendant interposes a case, chancery in character, touching the subject-matter contained in the petition, and relief is granted thereon, the cause becomes one in chancery. 21 Corpus Juris, 506. This was in substance our holding in the case of *Kiriakis*v. *Fountas,*109 Ohio St., 553, wherein the discussion upon that subject appears in the opinion on page *447558, 143 N. E., 129. The money judgment asked for was necessarily incidental to the relief granted. Had the defendant below prevailed, no accounting could be had or money judgment recovered. If the plaintiffs prevailed on the issues made by the cross-petition, an accounting followed as a matter of course. The amount of recovery, if any, depended upon the equitable relief granted. 21 Corpus Juris, 140. An action to quiet title, authorized by Section 11901, General Code, by one in possession against another claiming an estate in the premises, is equitable in character and has been considered as an action in chancery. See the opinion of Judge Hitchcock in *Clark*v. *Hubbard,*8 Ohio, 382, 385.

It follows, therefore, that the Court of Appeals did not err in overruling the motion to dismiss the appeal. However, it appears from the pleadings that there was an issue as to whether there was, any amount due for oil produced and sold. The defendant traversed the allegations, contained in. the petition as to that issue. Although title to the oil and gas lease was established in the plaintiffs below, we find no proof in the record as to what amount, if any, was due. In that respect we find no evidence supporting the recovery for money. In view of this aspect of the case, we affirm the judgment of the Court of Appeals upon the legal phases and remand the case to that court for the purpose of ascertaining the amount due defendant in error.

*Judgment modified, and affirmed as modified.*

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