Opinion
Decided May 31, 1937.
Real property — Defective deed treated as contract to convey — Suits in ejectment and to declare a trust — Not election of remedies which bars action for specific performance, when.
1. A party claiming an interest in land as assignee of one who has unsuccessfully brought both a suit to set up a trust in the land and an action in ejectment, is not precluded from bringing an action for specific performance of a contract to sell such land, where it appears that under the circumstances neither of such remedies existed in favor of the assignor.
2. A defective deed may be construed to be a contract to convey the land described therein, so as to constitute the basis of an action for specific performance.
APPEAL: Court of Appeals for Butler county.
Mr. Frank F. Wessel, for appellee.
Messrs. Shank Shank., for appellants.
This is a proceeding on appeal on questions of law and fact.
The action is for specific performance, brought by Frank F. Wessel, assignee of a grantee named in certain defective deeds, against Horace C. Shank, administrator of the decedent grantor.
Previous to the institution of this action, the assignor of plaintiff brought first a suit to declare a trust, which was dismissed without prejudice, and next a suit in ejectment, which was decided adversely to the assignor of plaintiff. There can be no doubt that the present plaintiff assignee was fully cognizant of the previous suits. That no cause of action in ejectment existed, there can be no question. We do not consider plaintiff estopped by his assignor. There was no election of remedies, since no remedy under the circumstances existed either to declare a trust or for ejectment.
The evidence presented to this court develops that the decedent and assignor of plaintiff had for some time been close friends. There is some evidence that one of the pieces of property involved had been originally transferred by the plaintiff's assignor to the decedent, and that she was a beneficiary in an insurance policy upon the life of the assignor, for a considerable sum of money. During all of the time when the various actions were being filed by the assignor and this plaintiff, a suit to sell property of the decedent to pay her debts was pending.
The deeds, which as contracts the plaintiff is now seeking to have specifically enforced, were drawn upon regular conveyance forms, signed by the decedent, it seems clear, but her signature was not witnessed and there was no acknowledgment. The consideration recited therein is one dollar and other good and valuable consideration.
The assignor of plaintiff was apparently the only person present in her home at the time of her death. He took possession of all her private papers, turning all except the deeds over to the administrator of decedent. As far as his possession and delivery of the deeds is concerned, we find no difficulty in determining that he came rightfully into possession of the instruments by proper delivery.
A defective deed may be construed to be a contract to convey. 13 Ohio Jurisprudence, 843.
Any valuable consideration, though nominal, is sufficient to sustain the transfer of title, if such consideration really existed. 13 Ohio Jurisprudence, 863.
In the instant case there is ample in the record to sustain the requirement of consideration.
As to the claim of estoppel, there is nothing inconsistent in an action to declare a trust upon the theory that the plaintiff has at least a beneficial interest in the property, an action in ejectment that he has not only such beneficial interest, but is entitled to legal title and possession, and a suit requiring the personal representative of the decedent to specifically perform a contract to convey.
The plaintiff received no benefit from any of the previous suits and the evidence of detriment to the administrator is negligible, if at all existent. Frederickson v. Nye, 110 Ohio St. 459, 144 N.E. 299, 35 A.L.R., 1163; 15 Ohio Jurisprudence, 233. The first action, in any event, was dismissed without prejudice.
Section 11586, General Code, provides:
"An action may be dismissed without prejudice to a future action;
"1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court;
"2. By the court, when the plaintiff fails to appear on the trial;
"3. By the court, for the want of necessary parties;
"4. By the court, on the application of some of the defendants, when there are others whom the plaintiff fails to prosecute with diligence;
"5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action;
"6. By the plaintiff, in vacation, on payment of costs. The clerk, in such case, shall forthwith make an entry thereof on the journal, whereupon the dismissal shall take effect. This clause shall not apply to a petition in error, or a case in which a counter-claim or set-off has been filed.
"In all other cases the decision must be on the merits, upon the trial of the action."
Both the heir-at-law and the personal representative were made proper parties. 37 Ohio Jurisprudence, 182.
The appellee has no complaint against the decree of the trial court, and a similar decree may be here entered.
Decree accordingly.
HAMILTON and MATTHEWS, JJ., concur.