Kessler v. Bowers, 1767

1767 | Ohio Ct. App. | Nov 8, 1926

The original action was commenced by James P. Bowers for the purpose of quieting his title to certain real estate, in Lucas county, and resulted in a judgment and decree in favor of plaintiff.

The record discloses that one Jessie L. Reece purchased a tract of 30 acres of land on March 13, 1923, for the agreed price of $9,000, and that on the same day she and her husband entered into a contract in writing with Joseph P. Kessler by the terms of which it was agreed that Kessler was to supervise the subdividing and platting of the land and to sell the same free of expense to the other parties, excepting the cost and expense of surveying and advertising, and other necessary expenses, which the parties were to share equally. Further, the written contract provided that from the sale of the lots the $6,000 remaining due upon the purchase price should be paid, that Mrs. Reece should be reimbursed for the $3,000 paid by her, and that the remainder of the money derived from the sale of lots, after payment of the costs and expenses, should be divided equally between the parties; and each party was authorized to accept down payments on the sale of lots. The instrument contained a provision whereby Joseph P. Kessler and Jessie L. Reece were each entitled to select a lot from the premises for his or her own use, the location of the lots to be selected at once, but no deeds to be made until the amount of $9,000 had been realized from the sale of lots. This instrument was not acknowledged before any officer authorized to take acknowledgments and had only one witness. Shortly after its execution it was placed on record in the office of the county recorder of this county.

In July, 1925, Bowers entered into a written contract with J.L. Reece for the purchase of a lot, being a part of the 30-acre tract above mentioned, for the consideration of $1,400, and proceeded to erect a dwelling house thereon costing several thousand dollars. Subsequently Jessie L. Reece caused a warranty deed to be executed and delivered to him for the lot so purchased.

Bowers was not aware of the existence of the contract with Kessler at the time of his purchase, nor at the time he erected the dwelling house on the property. After learning of the existence of the contract between Kessler and Jessie L. Reece and her husband, he brought this action for the purpose of quieting his title against any claim of Joseph P. Kessler. The trial resulted in a judgment quieting his title, and this proceeding in error is brought to secure a reversal of that judgment.

The plaintiff in error relies, first, on the fact that his contract with the Reeces was placed on record in the office of the county recorder in this county, thereby being notice to Bowers; and, second, on the claim that on the execution of that contract he took possession of the premises, caused the same to be surveyed, set corner stones, and planted some trees on the premises.

Unless the contract between Kessler and the Reeces was one entitled to be recorded, it would not be notice to Bowers of any rights which Kessler might have. That the recording acts do not apply to an executory contract for the sale of real estate has been directly decided in Wood Sash, Door Paint Co. v. Burrows, 15 C.D., 781, 2 C.C. (N.S.), 213. The case cited follows a decision of the Supreme Court entitled Churchill v. Little,23 Ohio St. 301. An extensive note relating to the recording of instruments, where no statutory authority to record exists, may be found in 26 A.L.R., 1546. The learned author of the note states the principle as follows:

"If no provision is made or authority given for recording executory contracts for the sale of real property, and record of such an instrument is in fact made in the book of records, no effect as constructive notice can be given the record."

It is contended by counsel for plaintiff in error that the case of Weir v. Snider Saw Mill Co., 88 Ohio St. 424, 103 N.E. 133, Ann. Cas., 1915B, 233, controls the case at bar, but in view of the fact that the instrument involved in that case was not recorded, and was an executed contract for the sale of growing timber, construed by the court to be a conveyance thereof, we are unable to see that it controls the case at bar. Bowers was not bound because of the record of the contract to take notice of its contents. Neither was he bound by the claimed acts of possession. Those acts consisted only in setting iron pipes to mark the corners of the 30-acre tract, none of which pipes was seen by Bowers. Neither did he know that Kessler had set out trees or shrubbery on the property. Kessler had in fact caused a plat to be made of the property, but that had not been approved by the Reeces, nor had it been recorded.

The record discloses that Bowers was a purchaser in good faith, without knowledge of any rights claimed by Kessler, and the judgment quieting his title is correct.

Judgment affirmed.

WILLIAMS and YOUNG, JJ., concur.