OPINION
By HORNBECK, J.This is an appeal which proceeds as upon questions of law, from a decree of the Common Pleas Court engrafting a trust on a deed to the extent of an undivided one-half interest in the real estate described in *589the petition in favor of plaintiff subject to certain liens and a mortgage indebtedness thereon.
Nine errors are assigned which we will not set out verbatim.
We come immediately to the one assignment which is dispositive of the appeal, viz, the fourth: “The court erred in weighing the evidence •and awarding judgment to appellee upon a preponderance of the evidence, whereas, the degree of proof required must be clear and convincing.”
The Bill of Exceptions discloses that on the completion of the taking of the testimony and the submission of the cause to the trial judge, among other things he said:
“Now getting to the evidence, I would like to point out that this is not a criminal case. The court does not have to be convinced beyond a reasonable doubt upon the issues of this case. That is the degree of proof in criminal cases. It is not the degree of proof in civil cases. But the court is to determine the evidence and determine where the weight of the evidence lies or preponderance of the evidence as it is sometimes called and whether or not it arises to the degree to convince sufficiently to require a judgment in favor of the plaintiff or whether it is of sufficient quality and weight and calls for a judgment in favor of the defendants. That is the process of weighing the evidence and which the Court will undertake to do.”
He then indicated that he would decide the case on the next afternoon and fixed the time upon request of counsel at 2 o’clock.
Prom the foregoing statement of the trial judge it seems highly probable that when he decided the case he applied the preponderance of evidence rule as the basis for the burden of proof it was incumbent upon the plaintiff to establish, and that such proof would “arise to the degree to convince sufficiently to require a judgment in favor of the plaintiff.”
The burden of proof which was required in this case was that which was clear and convincing. Although the petition does not expressly plead fraud, counsel for appellee concede that it was predicated on fraud. The allegation of the petition was that there was an agreement between the parties to the effect that, upon the advancement of the sum of $1000.00 by plaintiff to the defendant upon the purchase price of the real estate, though the title was to be taken in the name of the defendants, the ownership was to be in both the plaintiff and the defendants in the proportion of one-half each. Upon this aver.ment, the prayer was that a trust be impressed upon the deed to the defendants for the real estate in one-half thereof in behalf of the plaintiff.
Although there has been some variation in the decisions of the courts on the question of the quantum of proof requisite to establish fraud or deceit the rule in Ohio now seems to be well established. The action here was to establish a trust. This suit was on the equity side of the court. Such actions have long been recognized as requiring clear and convincing proof to support a decree declaring a trust.
In the early case of Merrick v. Ditzler, 91 Oh St 256, in the opinion Chief Justice Nichols discusses the question and holds that suits seeking *590to engraft a trust come within the class of cases requiring clear and convincing proof. This declaration was not requisite to the judgment in the case and it is not carried in the syllabus, however, it conforms to the definite weight of authority. A general discussion of the subject is found in 19 O. Jur., Fraud and Deceit, page 519 et seq., paragraphs 244, 245 and 246. And also as applied to reformation of instruments, 17 O. Jur., Evidence, page 410, par. 320.
By the issues drawn by the pleadings and upon the evidence the defendants were entitled to have the trial judge pass upon them originally and to weigh them by clear and convincing evidence rule. This they were denied to their prejudice.
It is suggested that the record well supports the decree upon apply-4 ing the correct measure of proof, and that this court could so hold. It is not our function on a law appeal to pass upon the evidence as upon original presentation. The first trier of the facts has that exclusive privilege and until he has so acted, this court may not weigh the evidence.
Because of the fact that this appeal is determined upon the assignment of error which relates only to the quantum of proof, we may not consider the other errors assigned.
Judgment reversed and cause remanded for a new trial.
CONN, J, concurs.