305 N.E.2d 924 | Ohio Ct. App. | 1973
This appeal arises from an action brought by the plaintiff-appellee in the Court of Common Pleas of Hamilton County, Ohio, to quiet title to certain real property located in that county as against an adverse interest asserted by defendant-appellant, Sterling Finance Company, hereafter referred to as Sterling, predicated upon a money judgment secured by Sterling against plaintiff-appellee's predecessor in title. The trial court, considering the matter on an agreed statement of facts, found in favor of the plaintiff-appellee and entered a decree ordering title and possession of the property quieted as against Sterling, which argues here that such order was contrary to law and to the manifest weight of the evidence.
The facts material to this appeal may be summarized as follows:
1. On January 15, 1971, Sterling obtained a money judgment against John and Inez Burrell, the then owners of the real property in question. Sterling did not attempt to levy execution against this property, nor did it then seek to file a certificate of such judgment with the office of the Clerk of the Court of Common Pleas pursuant to R. C.
2. On February 4, 1972, John and Inez Burrell conveyed the property in question by deed of that date to Judith A. Lewis, who paid the full purchase price therefor pursuant to mortgage financing. Lewis took immediate possession of the property, but the deed was left with the financial institution for later recording.
3. On February 7, 1972, Sterling filed with the Clerk of Courts, Hamilton County, Ohio, a certificate of judgment setting forth the money judgment secured against the Burrells on January 15, 1971.
4. Thereafter, on February 8, 1972, the deed from the Burrells to Lewis was presented to the auditor of Hamilton County for transfer, which was duly accomplished on *19 February 9, 1972, on which date it was also lodged with and recorded by the recorder of Hamilton County.
5. On October 5, 1973, Lewis conveyed the property in question to plaintiff-appellee, said deed being duly recorded.
Sterling argued in the trial court and urges here that its money judgment against the Burrells, which it caused to be certified in accordance with R. C.
The general rule applicable to the problem has been stated as follows:
"Accordingly, the interest of a person to whom a judgment debtor has conveyed real estate before the attachment of the judgment or execution lien is preferred to the interest of the judgment creditor, unless such priority is affected by theprovisions of recording statutes, or statutes relating tofraudulent conveyances, or the conveyance is void for otherreasons, or the grantee is estopped from asserting his claim asagainst the judgment creditors." (Emphasis added.) 32 Ohio Jurisprudence 2d 178, Judgments, Section 458.
This statement of the rule appears entirely consistent with the decisions by the Supreme Court in Dow v. Union NationalBank,
Sterling, indeed, does not assert any of the foregoing factors which might be held to qualify or condition the general rule preferring the interest of the vendee over the judgment creditor, but argues the controlling effect of the "recording statutes," urging that its priority is favorably affected by virtue of its compliance with the certification procedure of R. C.
"All deeds * * * shall be recorded in the office of the county recorder of the county in which the premises are situated, and until so recorded or filed for record, they are fraudulent, so far as relates to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of such former deed * * *." While this position appears at first blush to receive some support in cases cited by Sterling, an analysis of those cases demonstrates that they will not bear the burden sought to be placed upon them by appellant, and are readily distinguishable from the instant cause.
Thus, in Sternberger and Williard v. Ragland,
"The holding is in conformity with the general rule in this state that a judgment creditor does not stand in the position of an innocent purchaser for value, and that such creditor gets only such interest as the judgment debtor has in the property."
The court in the Boerner case above noted that the judgment creditor had not availed herself of her right to obtain a certificate of judgment under the predecessor of R. C.
The same Court of Appeals, a few years later, was presented with a case where the judgment creditor had, in fact, secured a certificate of judgment against the grantor of an unrecorded instrument prior to the recording thereof. In this decision,Sinclair Refining Co. v. Chaney,
"2. By force of the provisions of Section
As a result, the court held that the judgment liens of creditors having certificates of judgment secured after the execution and delivery of the instrument conveying a limited life lease, but prior to the recording thereof, were subordinate to such lease. Said the court, at page 547:
"The judgment creditor's rights are limited to those provided by statute and a creditor's rights as to a lien on real estate do not rise to those of a bona fide purchaser."
We agree that this is a proper statement of the law of this state and should be followed. Parsons v. Parsons, 27 Ohio Op. 2d 120; Hunley v. Blackington, Hamilton County Common Pleas Court No. A-165725, October 6, 1958.
Inasmuch as, therefore, the judgment of the trial court quieting title to the premises as against Sterling's claim is supported by the agreed statement of facts and is in accordance with law, we find appellant's assignments of error to be not well taken and accordingly overrule the same.
We might note that our decision on the foregoing question makes it unnecessary to consider and decide an additional question which was not raised by counsel but is clearly presented by the facts in this cause. Thus, even if Sterling were held to be a bona fide purchaser within the meaning of R. C.
The judgment of the Court of Common Pleas, Hamilton County, Ohio is affirmed.
Judgment affirmed.
HESS, P. J., and SHANNON, J., concur. *23