Henry Bruning brought proceedings in the Lucas Common Pleas seeking a divorce from his wife, Jessie Bruning. The wife filed a cross-petition praying for a divorce and alimony and for custody of a minor child. On trial the cross-petition was dismissed and Henry Bruning was granted a divorce.

The court adjudged that certain real property be decreed to the wife upon the express condition that she pay the mortgage indebtedness against the property with interest. The notes which she was then obliged to pay, were made a lien upon the property so decreed to her.

Error was prosecuted by Bruning and it was claimed that the judgment of the lower court was manifestly against the weight of the evidence in respect to the division .of property. The Court of Appeals held:

There is a division of opinion as to whether or not the court below should have, in some way, provided for an entire separation of the property rights of the parties, so that there would have been no liability upon the husband for an indebtedness remaining against the property in the event of default of the wife in making payments required of her. As it requires the concurrence of all the judges of the court to reverse a judgment of the court below upon that ground, the judgment is affirmed.