Fischbach v. Cook (41 Ohio App. 495, 1931)

Hamilton, J.

This case is here on appeal.

Plaintiff, Howard P. Fischbach, brings the action against George B. Cook and Bertha Cook, and Charles Re and Augusta Re, in which he asks that the defendants George B. Cook and Bertha Cook be decreed to convey the premises described in the petition to the plaintiff by general warranty deed, with release of dower, and asks that the conveyance from George B. Cook and Bertha Cook to Charles Re and Augusta Re be set aside and held for naught.

The plaintiff bases his claim on a certain contract entered into between him and George B. Cook and Bertha Cook for the purchase and sale of the real estate in question.

XJpon the trial of the case the trial court granted the relief prayed for, and Charles Re and Augusta Re appeal from that decree to this court.

The plaintiff pleads that he entered into a contract with the defendants George B. Cook and Bertha Cook for the purchase of the real estate in question for the consideration of the sum of $7,500, and other details, and that he is ready, able, and willing to pay the balance of the purchase price less the cash deposit paid; that the defendants George B. Cook and Bertha Cook refuse to execute the contract, and that said George B. Cook and Bertha Cook have sold and conveyed said premises to the defendants Charles Re and Augusta Re for a valuable consideration. The petition charges that the defendants Charles Re and Augusta Re well knew of the plaintiff’s contract, and knew of the rights of this plaintiff at the time they received said conveyance and took the title to the premises.

Defendant Bertha Cook filed a general denial to the plaintiff’s petition.

Charles Re filed an answer in which he admits the premises were sold and conveyed to him, and denies generally the other allegations of the petition. He states in his defense that on September 16, 1929, the premises were conveyed to him by deed from Bertha Cook and George B. Cook; that on September 26,1929, at 1:51 o’clock, p. m., the deed was left for record in the office of the recorder of Hamilton county; that said conveyance was made by George B. Cook and Bertha Cook under and by virtue of a written contract, dated December 1, 1928, for the sum of $7,250; that during December, 1928, he was ready, able, and willing to carry out the terms of said agreement to purchase from the defendants George B. Cook and Bertha Cook, hiit they were unable to convey the premises by reason of a cloud on the title; that on or about the 28th day of January, 1929, the defendant Charles Be promised the Cooks that he would take the property and perform the terms of his contract if the title to said real estate were registered; that in accordance with said promise an action for registration of the title was commenced, and a final decree was entered on or about the 12th day of July, 1929; that, said title being registered, said contract of December 1, 1928, was performed by the execution of the deed and the payment of the purchase money.

Be further states in his answer that the plaintiff at the time alleged to be the date of his contract knew of the terms and conditions of said contract to purchase between him and George B. Cook and Bertha Cook; that the plaintiff, knowing of the said contractual relation between George B. Cook, Bertha Cook, and this defendant, nevertheless sought to procure a breach of this defendant’s contract, and did procure a contract to purchase said premises from Bertha Cook and George B. Cook for the sum of $7,500, and he asked that the petition be dismissed.

Augusta Be answered, admitting the conveyance to Charles Be, and stated that she had no interest other than by way of inchoate dower.-

It would serve no purpose to quote from the evidence adduced in the case. It is sufficient to say that the evidence adduced sustains the allegations of the answer of Charles Be. His contract to purchase was in existence at the time the plaintiff secured a contract, and plaintiff knew of the existence and terms thereof. He proceeded on the theory that the time elapsing before execution of the contract between the Cooks and Re had invalidated and voided Re’s contract. There was ample reason for the delay, but it was not caused by the Res, but by the time taken to register the title. Re’s contract was on record prior to that of the plaintiff. Even admitting that there was some unnecessary delay, that would be a matter between the Cooks and Re. The Cooks waived any question of time and carried out the contract by executing the deed, giving a clear, legal title to Re. This being true, how could the plaintiff have any relief against Re?

There was no privity of contract between Re and Fischbach. Neither were there any legal relations created by contract or law. Under the facts a court of equity will not cancel the deed to Re. We find it to be a good and valid deed, and he is entitled to the premises. Fischbach’s rights, if any, are by an action for damages against George B. Cook and Bertha Cook. His relief is not in equity.

A decree will be entered finding the equities in favor of Charles Re and Augusta Re, and the plaintiff’s petition will be dismissed.

Decree accordingly.

Ross, P. J., and Cushing, J., concur.