Dan Cohen Realty Co. v. National Savings Trust Co.

10 Citing cases

  1. Dan Cohen Realty Co. v. Natl. Sav. Trust Co.

    125 F.2d 288 (6th Cir. 1942)   Cited 17 times
    In Dan Cohen Realty Co. v. National Savings Trust Co. et al., 6 Cir., 125 F.2d 288, it was held that a suit to enforce a contract for the conveyance of land was a proceeding "in personam" and not "in rem," and that such an action did not involve a claim on property within the district.

    Appeal from the District Court of the United States for the Eastern District of Kentucky; Hiram Church Ford, Judge. Action by the Dan Cohen Realty Company against the National Savings and Trust Company and another for specific performance of a contract to make a lease or to recover damages. From a judgment dismissing the complaint, 36 F. Supp. 536, plaintiff appeals. Affirmed.

  2. American Surety Co. v. Edwards Bradford Lumber Co.

    57 F. Supp. 18 (N.D. Iowa 1944)   Cited 9 times
    In American Surety Company v. Edwards and Bradford Lumber Company, D.C., 57 F.Supp. 18, at page 25, the decisions of the Spellman case are cited as holding contrary to the general rule and to the decision in the Vidal case.

    "The existence of a lien in favor of plaintiff is essential where it is sought to sustain the venue under this statute as a suit to enforce a lien, and the lien must be a specific one against specific property, and it must be an antecedent or pre-existing lien, and not one arising out of the suit." Cases which support the general rule referred to include, Shainwald v. Lewis, D.C.Nev. 1880, 5 F. 510, `516; Dormitzer v. Illinois St. L.B. Co., C.C.Mass. 1881, 6 F. 217, 218; Albert v. Bascom, D.C.Tex. 1917, 245 F. 149, 155; Wilhelm v. Consolidated Oil Corporation, D.C.Okla. 1935, 11 F. Supp. 444, 449, affirmed 10 Cir., 1936, 84 F.2d 739; Vidal v. South American Securities Co., 2 Cir., 1922, 276 F. 855; Wilson v. Beard, 2 Cir., 1928, 26 F.2d 860; George v. Tennessee Coal, Iron R. Co., C.C.Ga. 1911, 184 F. 951; Dan Cohen Realty Co. v. National Savings Trust Co., D.C. Ky. 1941, 36 F. Supp. 536, 538, affirmed 6 Cir., 1942, 125 F.2d 288. Contra, Spellman v. Sullivan, D.C.N.Y. 1930, 43 F.2d 762; Id., 2 Cir., 1932, 61 F.2d 787.

  3. Ga. Cent. Credit Union v. Martin G.M.C. Trucks

    622 F.2d 137 (5th Cir. 1980)   Cited 8 times

    Counsel have not cited, not has the court discovered, any appellate court decision which definitively answers this question. Plaintiff does refer the court to the opinion of the Sixth Circuit in Dan Cohen Realty Co. v. National Savings and Trust Co., 125 F.2d 288 (6th Cir., 1942) and the district court opinion at 36 F. Supp. 536 (E.D.Ky. 1941). It is clear from these opinions that the court had jurisdiction under diversity of citizenship and was deciding a question of proper venue, not jurisdiction.

  4. United States v. 425,031 Square Feet of Land, Situated in City of Jersey City, Hudson County

    84 F. Supp. 548 (D.N.J. 1949)

    Thus the preliminary negotiations themselves could not be construed as vesting any leasehold interest in Schaffer. See Dan Cohen Ralty Co. v. National Savings & Trust Co., D.C., 36 F.Supp. 536, affirmed 6 Cir., 125 F.2d 288; Williston on Contracts Sec. 28. However even though the parties contemplated execution of a formal lease, since the essential terms had been agreed upon they effected a contract to lease. See West Heights Realty Corp. v. Adelman, 107 N.J.Eq. 351, 152 A. 196. From the conduct of the parties in continuing the occupancy and in providing for additional security it is apparent that a binding obligation was intended.

  5. United States v. 257.654 Acres of Land, Etc.

    72 F. Supp. 903 (D. Haw. 1947)   Cited 5 times

    Whether here there is a lease or an executory contract for a lease depends essentially upon the intention of the parties, as gathered from the terms of their October 1940 agreement. If it is a lease, the Company acquired an estate in the lands for 10 years from January 1, 1944. If it is not, it acquired simply an executory right to compel the Damon Trustees to convey to, it such an estate, for breach of which contract the Company could recover damages or sue for specific perfornance. Dan Cohen Realty Co. v. National Savings Trust Co., D.C.E.D.Ky. 1941, 36 F. Supp. 536, affirmed 6 Cir., 1942, 125 F.2d 288; Thompson on Real Property (1940), Vol. III, Sec. 1214 et seq.; Tiffany, Landlord and Tenant, Vol. I, p. 371; 32 Am.Jur., Landlord and Tenant, Sec. 28 et seq. The law of Hawaii on this subject is in accord.

  6. Campbell v. City of Hickman

    45 F. Supp. 517 (W.D. Ky. 1942)

    It is well settled that a proceeding under Section 57 of the Judicial Code does not authorize the entry of a judgment in personam against an absent defendant who has not entered his appearance, regardless of the fact that he may have been proceeded against in accordance with the terms of the Statute. Clarke v. Boysen, 10 Cir., 39 F.2d 800, 815; Findlay v. Florida East Coast Ry. Co., 5 Cir., 68 F.2d 540; Wilhelm v. Consolidated Oil Corp., 10 Cir., 84 F.2d 739, 745, 746; McQuillen v. Dillon, 2 Cir., 98 F.2d 726, 729; Dan Cohen Realty Co. v. National Savings & Trust Co., D.C.E.D. Ky., 36 F.Supp. 536. In the opinion of the Court the judgment sued on herein, insofar as it attempts to operate in personam against this defendant, is void, and can not be enforced in this action.

  7. In re Lykins Enterprises, Inc.

    CASE NO. 10-20240, ADV. NO. 10-2056 (Bankr. E.D. Ky. Jan. 19, 2011)

    The agreement executed by the parties conveys an estate in land to the Plaintiff which is a right that may be conveyed pursuant to a lease. See Dan Cohen Realty Co. v. National Sav. Trust Co., 36 F.Supp. 536, 538 (E.D. Ky. 1941). "A lease is but a conveyance of an estate in realty." Mattingly's Executor v. Brents, 159 S.W. 1157, 1160 (Ky. 1913).

  8. In re Lykins Enterprises, Inc.

    CASE No. 10-20240, ADV. No. 10-2043 (Bankr. E.D. Ky. Jan. 7, 2011)

    The agreement executed by the parties conveys an estate in land to the Defendant which is a right that may be conveyed pursuant to a lease. See Dan Cohen Realty Co. v. National Sav. Trust Co., 36 F.Supp. 536, 538 (E.D. Ky. 1941). In addition, the language chosen by the parties, including identifying themselves as "landlord" and "tenant," is given great weight by this court, although not solely determinative of the parties' intent.

  9. Target Stores, Inc. v. Twin Plaza Co.

    153 N.W.2d 832 (Minn. 1967)   Cited 13 times
    Concluding that title was unmarketable because there was “serious doubt” as to whether unrecorded prior lease agreements created an adverse interest in the property, even if the alleged defects did not actually affect the title to the real property

    Except where the proposed lessee is in possession, see Bradley v. Metropolitan Music Co. 89 Minn. 516, 95 N.W. 458; Galante v. Hathaway Bakeries, Inc. 6 A.D.2d 142, 176 N Y So.2d 87; 51 C.J.S., Landlord and Tenant, § 194; contra, United States v. 257.654 Acres of Land (D. Hawaii) 72 F. Supp. 903, an executory agreement to lease does not convey an interest in land. See, Whalen v. Galy, 211 Mich. 30, 177 N.W. 954; Dan Cohen Realty Co. v. National Sav. Trust Co. (E. D. Ky.) 36 F. Supp. 536; Jackson v. Delacroix, 2 Wend. (N.Y.) 433; 51 C.J.S., Landlord and Tenant, §§ 185, 194. The fact that a document covers a building yet to be constructed implies that the transaction is at most an agreement to lease rather than a lease.

  10. Howell v. Sewickley Township

    43 A.2d 121 (Pa. 1945)   Cited 2 times

    That a lease is an interest in land and, as such, embraced by the comprehensive terms of the clause just quoted can hardly be disputed. See Ottman v. Albert Company, 327 Pa. 49, 54-55, 192 A. 897; Harding v. Seeley, 148 Pa. 20, 24, 23 A. 1118; Dan Cohen Realty Co. v. National Savings Trust Co., 36 F. Supp. 536, 538; Tiffany on Real Property (3rd Ed.) §§ 25, 74, 76 and 953. In view of the breadth of Ocean's conveyance to Herminie and in the absence of any specific exclusion of the Howell lease therefrom, it would be unreasonable to construe Ocean's deed to Herminie as excluding an assignment of the Howell lease.