Opinion
No. 26690
Decided February 2, 1938.
Descent and distribution — Right to cancel deed descends to grantor's heirs, when.
The right to cancel a deed obtained from a grantor by mistake, fraud, duress, or undue influence descends to his heirs if it existed in the ancestor unimpaired at the time of his death.
APPEAL from the Court of Appeals of Cuyahoga county.
In the Court of Common Pleas the plaintiff-appellant, Andrew Czako, filed his third amended petition asking the rescission and cancellation of a quitclaim deed executed by his father shortly before the latter's death. The grantee named in the deed is the defendant, Mary Czako Orban, who is a sister of the plaintiff and a daughter of the grantor. In substance the plaintiff alleges that by fraud and misrepresentation the defendant, Mary Czako Orban, obtained her father's signature to the deed; that the deed was never delivered to her by her father; and that she nevertheless procured possession of the deed and had it filed and recorded by the recorder of Cuyahoga county. The prayer of the third amended petition is as follows:
"Wherefore, this plaintiff prays that, upon the hearing of this cause, said defendants Mary Czako Orban and Martin Orban, husband and wife, be ordered by this court to convey said property by deed to the said surviving children and legal heirs of said Marton Czako, deceased, to wit, Andrew Czako, Anna Czako Frater and Mary Czako Orban and said Martin Orban be ordered by this court to sign the deed, thus conveying said property, as aforesaid, releasing therein his dower interest; or that this court may order said quitclaim deed delivered up, rescinded, nullified and cancelled of record; and that this court may grant any other and further relief to the plaintiff herein and the said surviving children and legal heirs of said Marton Czako, deceased, as may be proper and equitable in the premises; and that said defendants, Mary Czako Orban and Martin Orban be ordered to pay the costs of these proceedings."
The trial court granted the motion of the defendants for judgment at the conclusion of the opening statement of counsel.
The Court of Appeals affirmed the judgment of the Court of Common Pleas.
The case is in this court by reason of the allowance of a motion to certify.
Mr. Louis K. Birinyi, for appellant.
Mr. D.B. Stone, for appellees.
The single question requiring consideration by this court at this time is whether an ancestor's unimpaired right of action to set aside a fraudulently obtained conveyance of land descends to his heirs. Restated and simplified, the problem is whether such a right of action is wholly personal to the grantor and therefore abates. Or does it survive?
The parties agree that the precise question has not been decided previously by this court. However, the plaintiff places some reliance upon certain language appearing in the opinion in the case of Brockschmidt v. Archer, 64 Ohio St. 502, 60 N.E. 623, while the defendants quote a sentence from the opinion in the case of Stevens v. McCoy, 60 Ohio St. 540, 54 N.E. 517. An examination of the two cases discloses that in neither was the instant question raised.
Although the authorities are not in entire harmony, the general rule is that the right to cancel a deed obtained from a grantor by mistake, fraud, duress, or undue influence descends to the heirs if it existed in the ancestor unimpaired at the time of his death. 14 Ohio Jurisprudence, 259; 2 A. L. R., 437; 33 A. L. R., 53; 18 Corpus Juris, 904; Walling v. Thomas, 133 Ala. 426, 31 So. 982; Trubody v. Trubody, 137 Cal. 172, 69 P. 968; Page v. Garner, 146 Cal. 577, 80 P. 860; Re Blackinton, 29 Idaho 310, 158 P. 492; Warner v. Flack, 278 Ill. 303, 116 N.E. 197, 2 A. L. R., 423; Flick v. Murdock, 115 Kan. 862; Adkins v. Adkins, 171 Ky. 762, 188 S.W. 843; Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445; Hall v. Otterson, 52 N.J. Eq. 522, 28 A. 907; Disch v. Timm, 101 Wis. 179, 77 N.W. 196; Harding v. Handy, 11 Wheat, 103, 6 L.Ed., 429. This is in conformity with the broad and liberal principle that heirs occupy the place of their ancestor and take the same interest in his property as he had at the time of his death. Likewise, this rule is consistent with the equally broad and liberal provisions of Section 11397, General Code, relating to the abatement of pending actions, and Section 11235, General Code, which reads as follows:
"In addition to the causes which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto."
This court is unimpressed with the defendant's contention that the father's right of action was of such a highly personal nature that it should be limited to him alone and not be permitted to survive and descend to his heirs. Neither is the court intrigued by the speculation that if the father had discovered the fraud in the brief interval before his death, he might have acquiesced in it. Courts should be zealous in discovering fraud and compelling restitution.
The judgment of the Court of Appeals must be reversed and the cause remanded to the Court of Common Pleas for retrial.
Judgment reversed and cause remanded.
MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and GORMAN, JJ., concur.