#### Dickerson et al., Appellants, *v.*Curtin et al., Appellees.

(No. 4003

— Decidéd June 13, 1947.)

*487
      *Mr. A. J. Worsham*and *Mr. Frank C. Shearer,*for Appellants.

*Messrs.iPreteman &*Dillon, for appellees.

By the Court.

This, is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin county, in an action to quiet title brought by Bennett Dickerson and Harriet L. Dickerson, husband and wife, against Thomas E. Curtin who, although served with summons, filed no pleadings and .gave no notice of appeal. Immediately after the action was commenced Erma C. Pratt was made a party defendant, filed an answer and defended the action.

The plaintiffs, appellants herein, claim title to the real estate involved through a quitclaim deed from Charles F. Worley and Ivya Worley, husband and wife, dated May 11, 1946. The Worleys claim their title through a general warranty deed from Thomas. E. Curtin, dated August 23, 1945.

Subsequent to the conveyance from Curtin to the Worleys, and prior to the conveyance from Worleys to Dickersons, ah action was commenced in the Common Pleas Court of Franklin county by Hamilton Mc-Allister and others against the Worleys, case No. 169347, seeking to set aside the deed from Curtin to the Worleys on the ground that it violated a certain restrictive covenant relative to the sale of the property to persons other than those of the Caucasian race. That action resulted in a decree that the deed from Curtin to the Woideys was null and void as of the date of its execution; that no right, title or interest passed to the Worleys by reason of such purported deed; and that the owner of the property was Thomas E; Curtin. The decree was filed of record on June 10, 1946. During the pendency of that action, and about one month *488before tbe decree was entered, to wit, on May 11, 1946, tbe Worleys executed tbe quitclaim deed to tbe Dicker-sons, under which they claim title. After the decree in the case of *McAllister*v. *Worley*became final, Thomas E. Curtin, on July 13, 1946, conveyed” the real estate in question to Erma C. Pratt. In a separate trust agreement Erma C. Pratt agreed to hold the property as trustee for Vernon W. Moss, as an individual and as president of the Eastwood Civic Association. Those facts were alleged in the answer of Erma C. Pratt and were proven at the trial.. The facts were not in dispute; the questions raised were legal and not factual.

We have been furnished a copy of the well-prepared opinion of Judge Leach. It is thorough and well reasoned; to attempt to improve on it would be futile. We approve the judgment of the trial court in every particular. In substance, the court found:

“That the plaintiffs have no title upon which to-base their petition to quiet title to the premises; that by virtue of the conveyance by quitclaim deed from Charles F. and Ivya Worley, the said plaintiffs obtained no right, title or interest in and to s'aid property, the title to which they sought in their petition to quiet;- that said plaintiffs had actual notice of the pendency of the case of *McAllister*v. *Worley,*No. 169347 on the dockets of this court, wherein Charles F. and Ivya Worley, the grantors in the quitclaim to the plaintiffs in the instant case, were denied any right,, title or interest in and to said premises, and that by virtue of the quitclaim deed from the defendants Worley to the plaintiffs, the plaintiffs acquired no right,, title or interest in and to said premises, and' that by virtue thereof, the petition of the plaintiffs should be dismissed. ’ ’

*489From that judgment the plaintiffs have prosecuted this appeal. For their first assignment of error plaintiffs contend that the court erred in overruling the motion to dismiss Erma C. Pratt as a party defendant. The point is made that Erma C. Pratt held the property as trustee; that she held no beneficial interest and was not the real party in interest. The record shows that she was the record title holder and, even though she held the property as trustee for others by the terms of a separate trust agreement, she, nevertheless, held the legal title.

A trustee of the legal title may maintain an action to quiet title. 33 Ohio Jurisprudence, 897, Section 77. A trustee is competent to maintain or defend an action in preservation or protection of the *res.*33 Ohio Jurisprudence, 918, Section 105; 40 Ohio Jurisprudence, 370, 375.

Second, it is claimed that the court erred in sustaining defendant Pratt’s motion to amend her answer and in proceeding to adjudicate the case against plaintiffs without a real party in interest as a party defendant. The court properly allowed the defendant, Erma C. Pratt, the right to amend her answer to conform to the proof, by alleging that she held the property as trustee. Except for the right of amendment, this assignment of error raises the same question as was raised by the first assignment.

Third, it is contended that the court erred in finding that the plaintiffs had no right, title or interest in the property involved. A question is raised as to whether the doctrine of *lis pendens*was properly applied. The quitclaim deed under which the plaintiffs claim title was executed while the case of *McAllister*v. *Worley*was pending. Under the provisions of Section 11300, General Code, the plaintiffs were charged with notice *490of the pendency of the suit. During the pendency of that action, the plaintiffs could not acquire any interest under the quitclaim deed against the parties to that litigation.. Any interest which the plaintiffs would acquire would be subject to the judgment or decree in that case. See 25 Ohio Jurisprudence, 654; *Cook v. Mozer,*108 Ohio St., 30, 140 N. E., 590. However, the trial court did not rely entirely on the doctrine of *lis pendens,*since the undisputed evidence shows that at the time the transfer was made to the plaintiffs they had actual knowledge of the pendency of the case of *McAllister*v. *Worley,*and of the issues raised therein. In that case the court decreed that the Worleys had no title to the property in question. . It follows that if the Worleys had no title they could not convey title to the plaintiffs.

Fourth, it is contended that the court erred in dismissing plaintiffs ’ petition and in rendering judgment for defendants. The point is made that since the plaintiffs were not parties to the case of *McAllister*v. *Worley,*they now have a right to impeach the decree if they feel aggrieved by it. As heretofore stated, either under the doctrine of *lis pendens*or on the ground of actual knowledge of the pendency of the action, the plaintiffs are bound by the decree in the case of *McAllister*v. *Worley,*and as to them such decree is final and conclusive.

Finding no error in the record prejudicial to «the rights of the plaintiffs, the judgment is affirmed.

*Judgment affirmed.*

Wiseman, P. J., Miller and Hornbeck, JJ., concur.