The Oak Building & Booking Co. v. Susor (32 Ohio App. 66, 1929)

Richards, J.

On December 1, 1927, tbe plaintiff, tbe Oak Building & Roofing Company, was tbe owner of certain real estate in Eastmoreland, in Lucas county, valued at $8,500, and tbe defendants were tbe owners of a lot with a bungalow tbereon situated in Pinellas county, Florida. On that day tbe parties entered into a valid written contract to exchange their properties. On December 5, 1927, about 5:30 p. m., a deed was executed and delivered by plaintiff, conveying its property to defendants, and they transferred tbe Florida property to plaintiff. Thereafter it developed that tbe bungalow bad been destroyed by fire at about 2 p. m. of tbe same day that tbe deeds were made, and some three and a half hours before tbe execution and delivery of tbe deeds. This action was brought for tbe purpose of securing an order from-tbe court for reconveyance of tbe Lucas county property to tbe plaintiff, and for setting aside tbe deed which bad been executed by tbe plaintiff to tbe defendants.

In tbe court of common pleas a decree was rendered for tbe defendants, from which the plaintiff appealed.

Tbe contract contains no provision as to who should bear tbe loss in case any building on either of tbe properties should be destroyed before tbe deeds were executed; neither does it contain any provision requiring either of tbe parties to deliver tbe land with tbe buildings tbereon in tbe same condition as when tbe contract was executed by the parties. Tbe bungalow was destroyed by fire without any fault on tbe part of tbe defendants. Tbe contract of sale being unconditional in form, we must regard tbe purchaser as tbe equitable owner of tbe property, and the vendor as holding the title for the benefit of the purchaser, and it would therefore result, under such a contract, that the loss by fire must fall on the purchaser.

A quite similar question was involved in the case of Gilbert & Ives v. Port, 28 Ohio St., 276, although that case was complicated with an option to purchase. The Supreme Court, in delivering the opinion, cite with approval Sugden on Vendors (8th Am. Ed.), 291, to the effect that the vendee of property, being the equitable owner from the time of contract of sale, must pay the consideration for it, even though the property be destroyed between the time of agreement and the time of conveyance. The rule thus indicated appears to have been adopted by a great majority of the authorities. Maudru v. Humphreys, Admr., 83 W. Va., 307, 98 S. E., 259; McGinley v. Forrest, 107 Neb., 309, 186 N. W., 74, 22 A. L. R., 567. The authorities are collected in a note to the last case cited, in A. L. R., beginning on page 575.

For the reasons given, judgment and decree will be entered for the defendants.

Judgment for defendants.

Williams and Lloyd, JJ., concur.