Since only properly executed mortgages were entitled to be recorded, a mortgage attested by only one witness, even though recorded, could not serve as constructive notice to a subsequent bona fide purchaser. See Citizens Natl. Bank v. Denison (1956), 165 Ohio St. 89, 94-95, 59 O.O. 96, 133 N.E.2d 329; Amick v. Woodworth (1898), 58 Ohio St. 86, 50 N.E. 437, paragraph two of the syllabus; Thames at 588, 611 N.E.2d 948; State ex rel. Puthoff v. Cullen (1966), 5 Ohio App.2d 13, 15-16, 34 O.O.2d 61, 213 N.E.2d 201. Consequently, bankruptcy trustees were able to avoid recorded Ohio mortgages that contained fewer than two attesting signatures. See, e.g.
(3) Instruments that are not entitled to be recorded or that are defectively executed, such as has not been acknowledged by two witnesses as prescribed in R.C. 5301.01, do not serve as constructive notice to a subsequent purchaser even though recorded. Bank v. Denison (1956), 165 Ohio St. 89, 59 O.O. 96, 133 N.E.2d 329, paragraph two of the syllabus; State ex rel. Puthoff v. Cullen (1966), 5 Ohio App.2d 13, 15-16, 34 O.O.2d 61, 62-63, 213 N.E.2d 201, 202-203; see, also, this court's decision in Grant v. Hickok Oil Co. (1948), 84 Ohio App. 509, 514, 40 O.O. 9, 12, 87 N.E.2d 708, 711 (recording of land contract is not constructive notice under former G.C. 8543, which did not provide for the recording of land contracts). As to appellees' contention that the land contract was defective, a purchaser who takes property with actual knowledge of the existence of a conveying instrument and that such instrument is defective takes subject to the same equities to which his grantor is subject.
Consequently, the instrument is not entitled to be recorded. See State ex rel. Puthoff v. Cullen (1966), 5 Ohio App.2d 13, 34 O.O.2d 61, 213 N.E.2d 201. Given this lack of compliance with R.C. 5301.01, I believe it is incumbent upon us to explain why we are approving a conveyance in which the deed was improperly executed.
Appliance Buyers Credit Corp. v. Crivello, 43 Wis.2d 241, 168 N.W.2d 892 (1969). State ex rel. Puthoff v. Cullen, 5 Ohio App.2d 13, 213 N.E.2d 201 (1966). With the Recorder in the opposite position, cases have arisen in several jurisdictions where the Recorder has erroneously filed a document and in subsequent litigation the court has held that, because the document under the recordation or other statute was not entitled to be filed, the recordation would not constitute constructive notice to subsequent purchasers of the property from the original grantor, and thus the recordation was without legal effect.
{¶29} As to this prong of the analysis, Relator Gormley claims he is entitled to mandamus relief because such relief is an appropriate remedy to enforce the ministerial duty of a county recorder not to accept documents for which there is no authority to record. (Relator's Memo. Contra at p. 2) In support of this argument, Relator Gormley cites State ex rel. Puthoff v. Cullen, 5 Ohio App.2d 13, 213 N.E.2d 201 (6th Dist.1966). In Puthoff, relator filed a mandamus action asking the recorder to expunge and cancel an instrument labeled, "Contract to Purchase Real Estate."