*1 grass watering grass sowing seed, the care of grass cutting personally. of the gives effect to below the court it, I see order As author- is expressly testatrix, clearly of the wishes expressed supra, of Section provisions ized discretion. an abuse constitute does not of the writer opinion of the opinion is the above, said has been From what assigned appellants of the behalf the errors writer that judgment overruled, and should be taken not well remanded for cause and the affirmed, should be court below law. in accordance with proceedings Appellees.* al., et Koch Appellants, et al., Baker (No. —Decided July appel- George TyacJc Herron, Robert L. E. and Mr. Mr. lants. .appellees.. Maugan, Braun, Vacca &
Messrs. form of an cause is before us This J. Craweord, peal questions for the defendants, of law ground lying appellees title to a in a suit to herein, respective parties. premises owned between overruled, January certify the record *Motion to Plaintiffs, dispute. are not appellants The essential facts Pleas of the Court Common challenge the herein, reasoning of. in the for defendants. resulting numbered A number of lots years ago large adjoining and 6 laid out lands of Elizabeth Alt- partition were Pleas Franklin man, Court Common deceased, *2 us the It the record before that from County, Ohio. the lots was parties plat prop- agree containing lot the common 5 erly conveyed (which owner recorded, lies to in in west) the to defendants’ and 6 that he lot lies the conveyed (which immediately east) in in plaintiffs’ 1943. predecessor In lot 5, description the of the names lot 5 with reference to the contains also a plat but description, by metes and in bounds, which results an few by encroachment feet the upon west of lot 6. Lot is not part mentioned either in this from deed the or original common in grantor any in chain of title. present defendants’ suit to quiet title to this encroachment on lot 6. plaintiffs’ Defendants argue by act in that, purporting describe lot 5 metes and bounds by by causing sur- corresponding stakes or to be set on lot veyor’s 6, the pins common grantor the lot the changed by line adding strip question lot 5 and it from lot But, subtracting course, recorded plat can- such informal and changed by any indirect method. Defendants invoke the rule of strict construction against grantor favor the grantee in case of am- also They argue other biguity. according claim the metes-and-bounds description prevail over lot reference to the plat. But circumstances in- have which prevent tervened of the present determination controversy by these rules alone. also,
Defendants contend the Court Common Pleas agreed, inasmuch as that, grantor might have con- veyed whatever he owned in such parcels by such descrip- tions as he chose, effectively conveyed whatever is included in the metes-and-bounds description, including of lot west 6 now part question. Hence, it is argued that thereafter could not have conveyed to another that which he owned. longer disposi- appear, may
Logical first at as this deduction another present account leave out tion of the issue would opinion determinative. which is in our feature the case conveyance to the grantor made his If, after common grantee grantee through claim, first whom plaintiffs ac- had no to record at and if failed his deed ’ knowledge all existence, then tual of its deed. 6 would have unaffected been present having issue recorded, been Such fact deed record of turns whether description plaintiffs’ taining the affects metes-and-bounds property—that are bound whether is, though conveyed grantor lot 6 even common lot was never number. mentioned applicable recording statute is Re- nor our research
vised neither the briefs own have Code. any revealed decision in such circumstances as are now Ohio applicable principles before us. suf- However, ficiently answering present question. defined to assist in early
In case Blake Graham, St., Ohio Supreme Court said: *3 “ purchaser legal by any £A title can not be affected equity notice, latent of which he has not actual or which does appear necessary not on some deed the deduction of his title. Sugden Vendors, on ch. note 430. rest
“These rules on the obvious reason, a searcher fairly supposed acquainted can be to be made with the contents process only tracing, as, link link, his necessarily pass chain of title on inspec- record, under his ’’ tion. Jurisprudence, In 45 American Recording Records and appears following Laws, statement: impute purchaser “To a an instrument out of put the chain because it wholly was on is record, incon- * * equitable principles generally sistent with page Recording 493, Records and Laws, Section 128, following: ibid,
“Upon principle prospective a purchaser is under obligation no to examine the record of instruments not in the Upe contemplates to the property purchasing, title it is affect intended which is of an instrument record
held de- or erroneous defective because of but which, the property, constructively put not does not in the line of scription, matters con- purchaser inquiry suggested subsequent a actually' it is itself, proved unless tained in the cannot be is that he for the rule The reason read record. re- Thus, where read the instrument. presumed to cer- to relate its description corded instrument appears by land which notice as to other land, tain it is not constructive as to what Obviously, was to describe. intended sort of will make the instrument defects in the description facts not pear depend particular to be in line title will Generally connection particular systems recording. with the differ- illustrated speaking, be however, point may ence or block num- between an instrument wrong range giving and one that omits or block number. Or- merely range ber no the first will be in line of there dinarily, title, and occasion he is abstractor to look at the deed at since concerned property different other range. On if mere omission of the hand, number, county, town- range ship, and section number are will indicate a correctly given, the instrument is in line of if probability title, especially there no other with sections ranges county bearing section given number.”
Applying if the original deed tained reference lot 5, plaintiffs and their well have might put upon inquiry. inasmuch as lot 5 alone mentioned, and lot it is difficult to how not, see can be bound. it is not Surely, incumbent purchaser to examine the titles and the descriptions of the parcels surrounding land if they are not in his chain of title and he has no actual notice may affect him.
The record reflects an earlier suit title in defend- ants’ predecessors in title. Lot only is mentioned in those lot 6 is not. proceedings, Neither were the plaintiffs nor any *4 their Hence, title made parties. no de- cree could be rendered their title. affecting 33 Ohio Jurispru- dence, 928, Title, Section 120. Quieting
A certain quitclaim sub-
52.1 through ject to the same as is the infirmities which defendants claim. possession.
Defendants assert title adverse findWe support substantial evidence of that claim.
It is our conclusion are the owners the fee disputed simple title to the lot 6 as deline- plat, recorded ated and that none the defendants any right has or title therein. appeal
The reversed, costs this are as- against the sessed the cause is remanded for as- defendants, the costs in sessment of entering the Court of Common Pleas and the opinion. accordance with this
Judgment reversed. Younger, P. J., concur. J., McLaughlin, Appellate J., P. of the Third District, Younger, Mc- Appellate of the Fifth J., District, and Crawford, J., Laughlin, Appellate sitting by designation District, Second Appellate Tenth District.
(Decided September rehearing. Application carefully Per Curiam. We application have read rehearing support and their brief in thereof. arguments authorities therein contained have al- ready considered, and we find disagree that we must urged now conclusions counsel. application is denied.
Application denied. J.,P. McLaughlin Crawford, JJ., concur. Younger,