Mary Helmbold, as administratrix of the estate of Emil Helmbold, deceased, brought an action in the probate court of this county to sell real estate of her late husband to pay his debts. The plaintiff in error, Gustave Helmbold, who is a brother of the deceased, was made a party. The probate court in the determination of the proceedings before him found that the estate of Emil Helmbold had an interest in the property sought to be sold, namely, lot No. 1 in Douglas addition to Toledo, Lucas county, Ohio, and ordered that said lot be sold by said administratrix for the purpose of paying debts of the said deceased, free from the dower interest of said Mary Helmbold and all other liens thereon. This finding and judgment of the probate court was affirmed by the court of common pleas, and it is now sought to reverse the judgments of the courts below.
The record and the evidence show that on April 3, 1917, Emil Helmbold, then living, and Mary Helmbold, his wife, executed and delivered to Gustave Helmbold a warranty deed for this and other lots described in the deed; that at the time of its execution Emil Helmbold was indebted to Gustave Helmbold, for which the grantee arranged payment, *Page 34 and that this, together with other indebtedness, formed the consideration paid for the lots therein mentioned; that there were some additional creditors of Emil Helmbold at the time of the execution of this deed, and that subsequent to the giving of the deed a loan was made on this property by Gustave for the purpose of paying some of the indebtedness of Emil. It is now contended by the plaintiff in error that this is a deed absolute on its face, that the legal title passed to the grantee and therefore the probate court was without jurisdiction to order this property sold. On the other hand, it is contended that under the circumstances of the transaction it was not such deed absolute conveying title to the grantee as entirely deprived the estate of the decedent of an interest in said property, and that it was nothing more nor less than a mortgage. It is true that under Section 10493, General Code, the probate court has concurrent jurisdiction with the common pleas in proceedings to sell real estate to pay debts, and the various sections of the statutes provide a procedure for the probate court to follow in matters of this kind. Section 10783, General Code, provides:
"The court in which such action is pending may determine the equities between the parties and the priorities of lien of the several lienholders on such real estate, and order a distribution of the money arising from its sale, according to the respective equities and priorities of lien as found by the court."
The evidence tends to show that at the time of the execution of this deed it operated as and was merely security for the payment of said loans, and that upon the payment of the loans, with accrued *Page 35 interest, the said property should have been reconveyed by said defendant, Gustave G. Helmbold, to the decedent, or, in the event of his death, to his heirs. The probate court in its conclusions of law so found. It is now urged by the plaintiff in error that, Emil Helmhold having died, his heirs only are entitled to have the reconveyance of said lot No. 1 to them. For this reason it is contended that the power to require a conveyance of this property lies only within the jurisdiction of the common pleas court, and that therefore the common pleas court erred in affirming the judgment of the probate court. The administratrix is not seeking to set aside the deed, but to determine the rights and equities of the parties as their interests appear, and to have the property sold to pay the debts of the decedent.
The record in this case is very voluminous, and many authorities are cited on both sides in the effort to bear out their respective contentions, but we deem it inadvisable to lengthen the opinion of this court by setting out the numerous authorities contained in the briefs of counsel.
In the case of Doan v. Biteley, 49 Ohio St. 588, 32 N.E. 600, it is held that the proceeding of an executor or an administrator to sell the real estate of the deceased to pay the debts, and the cost of administration, whether prosecuted in the court of common pleas or the probate court, is a civil action, in which any person claiming an interest in the lands, or who is a necessary party to a complete determination of any question involved in the action, may be made a party defendant, and the probate court has jurisdiction to try any question of fact arising in such action therein prosecuted. *Page 36 The statutes also provide that all persons claiming an interest in the land or a lien on the land be brought before the court so that all questions affecting the title may be adjudicated and settled, in order that the purchasers may buy with safety and the property bring its fair value.
It is also held that where a deed absolute in form is accompanied, as part of the transaction, by a condition of defeasance, expressed in the conveyance or contained in a separate instrument, or existing in parol, whether the consideration be a pre-existing debt or present advance of money, if the relation of borrower and lender, debtor and creditor, exists between the parties, the conveyance will be regarded as a security and treated in equity as a mortgage and not as a sale either absolute or conditional. Wilson v. Giddings, 28 Ohio St. 554.
There is evidence tending to show that Emil Helmbold, during his lifetime, made improvements upon the property, paid some of the taxes and insurance, and some payments on the loan, and that by the making of the improvements the property naturally enhanced in value.
The evidence also tends to show that Emil Helmbold paid no rent for the occupancy of the property after the delivery of the deed. This fact might indicate that his brother, Gustave, out of his generosity, was seeking to aid and assist Emil because of his financial difficulties, but the authorities hold that where the evidence discloses several well-recognized marks indicative of a mortgage, as that the relation of debtor and creditor existed when the deed was made, that the transaction began in the application for a loan of money, that the grantor remained in possession without the payment *Page 37 of rent, that there was a disparity between the price claimed to be paid and the value of the property, and no formal settlement, the deed shall be considered a mortgage.
The burden of proof is upon the administratrix to maintain the averments in her amended petition by clear and convincing evidence, and we cannot say that the judgment of the probate court is so manifestly against the weight of the evidence as to require a reversal. We are of the opinion, therefore, that the probate court had jurisdiction and that the judgments of the courts below should be affirmed.
Judgments affirmed.
RICHARDS and WILLIAMS, JJ., concur.