Opinion
No. 16464
Decided March 22, 1965.
Deeds — Boundary description in error — Rescission when — Damages for deficiency in acreage.
1. The delivery of a deed to real property by the grantor for the grantee's use, and acceptance of the deed by the grantee pass title even though the deed is not yet recorded.
2. In a legal description of real property, monuments govern courses and distances.
3. A deed with a metes and bounds description containing an erroneous distance will nevertheless convey title if the correct boundary can be determined by reference to a monument located on the land.
4. The county auditor may make reasonable rules about deed descriptions so that accurate tax maps can be prepared.
5. Where a grantor, attempting merely to correct an erroneous first deed, delivers another deed on a printed form containing a general warranty, which second deed also contains an error in the description, the latter deed may be rescinded if the position of the parties has not changed in such a way that they cannot be restored to their original rights.
6. For a purchaser of real property to recover damages for fraud due to a deficiency claimed to exist in the statement of acreage following the description in a deed, he must plead and prove fraudulent or grossly negligent misstatements by the vendor upon which the purchaser relied before purchasing the property.
7. The measure of damages, by reason of a partial breach of warranty, is a proportionate part of the consideration paid, based upon the relative values of the portion not conveyed and the portion conveyed, with interest.
Mr. George F. Burkhart, for plaintiffs.
Mr. T.J. Kremer, Jr., for defendants.
Defendants orally agreed to sell a house and lot to plaintiffs, who at the time were living as tenants in the house next door. Defendants had a deed prepared (Plaintiffs' Exhibit 3), naming the plaintiffs as grantees, which contained the same property description as had appeared in the previous deed to defendants. The description read in part as follows:
"Beginning at a stone in the forks of the road leading to Cranesnest Creek by the way of Wolf Pen Road; thence south 22 1/2 Deg. west 3.17 chains; south 80 1/2 deg. east 1.10 chains; north 8 deg. east 2.11 chains; north 70 deg. west 8.3 chains, containing 20/100 acre, more or less * * *." (Emphasis added.)
Then followed a description of the so-called Pete Zonker lot of undisclosed acreage, the northern part of the tract, which was excepted from the grant of defendants' deed. Thus, the actual acreage conveyed by this deed does not appear.
This deed, the first of three from defendants to plaintiffs, was delivered by defendants, either to the Woodsfield Savings and Loan Company, which was financing the sale, or to plaintiffs. Plaintiff Bessie Briggs admitted she had received the deed, and it was in the possession of her attorney at the time of trial.
Before the deed was filed for recording, the loan was closed, the purchase price paid to the defendants, and possession of the property delivered to plaintiffs who moved into it.
At this point, the contract between the parties became an executed contract. The deed had been delivered by defendants to plaintiffs who had accepted it. The deed's description was sufficient to pass title. Title was now in plaintiffs even though the deed had not been recorded. In Kern v. Gardner et al (1925), 26 Ohio App. 48, 159 N.E. 840, affirmed (1926) 115 Ohio St. 575, 155 N.E. 134, the headnotes in the Northeastern Reporter contain the following:
"3. The title to real estate is conveyed and transferred by delivery of a deed."
In McDevitt v. Morrow (1950), 94 N.E.2d 2, 57 Ohio Law Abs 281, is the following headnote:
"4. Delivery of deed by grantor with intent to sever his right to further control the instrument and acceptance of deed with express or implied intent to take title as therein conferred are necessary to pass title to realty."
In Mitchell's Lessee et al v. Ryan (1854), 3 Ohio St. 377, followed in Robrahn v. Hamilton (1902), 66 Ohio St. 676, 65 N.E. 1133, the court held:
"(3) A delivery of a deed may be to a stranger for the use of a grantee.
"(4) It must appear that such delivery was for the grantee's use. But no precise form of words is necessary to the declaration of this purpose. Anything that shows the purpose is enough."
"(8) It is a general rule that acceptance by the grantee is necessary to constitute a good delivery.
"(9) But where a grant is plainly beneficial to the grantee, his acceptance of it is presumed in the absence of proof to the contrary."
In Alexander v. Greenfield et al (1951), 94 Ohio App. 471, 109 N.E.2d 549, 63 Ohio Law Abs. 293, are the following headnotes in the Northeastern Reporter:
"6. The execution, acknowledgment and delivery of a deed to a grantee raise the presumption of an acceptance of the instrument by him.
"7. Actual receipt of a deed by the grantee is not essential to an acceptance by him, but a constructive delivery may be established by whatever affords a presumption of his acceptance thereof."
The property description, quoted supra, in the first deed from defendants to plaintiffs was sufficient to pass title, even though it contained an error. Witness Sims, a registered surveyor, testified the last distance was much too long. Perhaps there was a misplaced decimal point, and the distance should be .83 chains instead of 8.3 chains. At any rate, the course runs to the starting point which is a stone in the fork of the roads. The stone is a so-called monument, and monuments govern courses and distances. In Broadsword v. Kauer (1954), Middleton, J., says, 161 Ohio St. 533, 120 N.E.2d 111, 116, 46 A.L.R. 2d 1309, 1316:
It is well settled that monuments are of prime importance in settling boundary disputes. The general rule is well stated in 6 Thompson on Real Property (Perm. Ed.) 519, Section 3327, as follows:
"A `monument' is a tangible landmark, and monuments, as a general rule, prevail over courses and distances for the purpose of determining the location of a boundary, even though this means either the shortening or lengthening of distance, unless the result would be absurd and one clearly not intended, or all of the facts and circumstances show that the call for course and distance is more reliable than the call for monuments. This rule does not apply when it is evident that the call for a natural object or established boundary line was made under a mistaken belief with reference to the survey. Generally, in determining boundaries, natural and permanent monuments are the most satisfactory evidence and control all other means of description, in the absence of which the following calls are resorted to, and generally in the order stated: First, natural boundaries; second, artificial marks; third, adjacent boundaries; fourth, course and distance, course controlling distance, or distance course, according to circumstances. Area is the weakest of all means of description. The ground of the rule is that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent. The reason assigned for this rule is that monuments are considered more reliable evidence than courses and distances. A description by course and distance is regarded as the most uncertain kind of description, because mistakes are liable to occur in the making of the survey, in entering the minutes of it, and in copying the same from the fieldbook. `Consequently, if marked trees and marked corners be found conformably to the calls of the patent, or if watercourses be called for in the patent, or mountains or other natural objects, distances must be lengthened or shortened and courses varied so as to conform to those objects.' When it comes to courses and distances, the latter yield to the former."
"The trial courts of Ohio have long followed the principles announced above as is indicated by the discussion and citations contained in 5 Ohio Jurisprudence, 741 to 748, Boundaries, Sections 38 to 44.
In Wyckoff's Lessee v. Stephenson (1846), 14 Ohio 13, the court held:
"(2) Where there is a discrepancy in the calls, the line actually run is to be found by having recourse to the more certain, fixed and natural objects called for in the boundary."
In Eggleston's Lessee et al. v. Bradford (1840), 10 Ohio 312, the court stated at page 316:
"* * * Where the description of an estate contains a number of particulars, each of which is necessary to ascertain the estate to be conveyed, the estate must correspond in character with each. But if sufficient be shown to ascertain the estate intended to be conveyed, the land may pass by the deed, although some of the particulars are false. 4 Mass. 205. And where the description alludes to facts beyond the deed, parol evidence may be offered, not to contradict the description, but to locate the deed upon the land. 4 Ohio 453."
That title can pass by a deed without its being recorded is implicit in Jeffers v. Philo (1878), 35 Ohio St. 173, in which the court held:
"Where a deed conveying real estate is executed and delivered, the destruction of the unrecorded instrument will not revest the title in the grantor; * * *"
Plaintiffs thus had title to the property at the time the purchase price was paid to defendants and plaintiffs moved into the property. Plaintiffs then sought to have the property transferred on the tax duplicate, so that the deed could be recorded. They were referred to the county engineer, who refused to approve the deed description. Plaintiffs were told that the property would have to be surveyed and a new deed prepared before it would be accepted.
The county auditor and engineer have nothing to do with property titles, of course. The auditor is required by statute to keep accurate tax maps, and may call upon the county engineer to assist him. Reasonable rules may be promulgated requiring deed descriptions to be in such form and detail as to enable the auditor to perform his duties. State of Ohio, ex rel. Ballard, v. McKelvey (1961), Monroe County Common Pleas Court No. 16,026, affirmed Monroe County Court of Appeals No. 375; cf. State, ex rel. Preston, v. Shaver (1961), 172 Ohio St. 111, 173 N.E.2d 758.
Plaintiffs understandably wanted a recordable deed for the property which they owned, and defendants proceeded to try to get them one. The witness, Sims, was employed to make a survey and prepare a description. The second of the three deeds from defendants to plaintiffs (Plaintiffs' Exhibit 1) was prepared, using the new description. The same printed warranty deed form was used for the second deed as for the first. The intent of the parties, however, was the limited one that the second deed would correct the description in the first and be recordable.
The second deed was then accepted for recording. It contained an error in the description, Sims testified. The metes and bounds included land in the rear of plaintiffs' property belonging to the witness Lisk, which abutted on the angling Wolf Pen Road. The amount of land was stated to be 0.41 acres.
Relying upon the apparent correctness of this second deed, the defendant, Charles Jeffers, innocently had a conversation with the plaintiff, Bessie Briggs, about her constructing a garage upon the land belonging in fact to Mrs. Lisk, with access on Wolf Pen Road. The fact that plaintiffs had no belief they owned the Wolf Pen frontage before this time is indicated by the fact that Mrs. Briggs had a conversation with Mrs. Lisk, sometime after plaintiffs took possession of the house and before the second deed was executed, in which it was agreed that the Briggs would park their automobile on South Main Street in front of the Lisk property, next door.
The second deed should be rescinded. In Parker et al v. Ingle et al (1937), 27 Ohio Law Abs. 137, the court says at page 141:
"* * * And rescission of an instrument may be granted for a mistake which is unilateral as well as for one which is mutual, if the position of the parties has not changed in such a way that they cannot be restored to their original rights." 6 Ohio Jurisprudence 548. Stewart v. Gordon, 60 Ohio St. 170.
Plaintiffs' position had not been changed from what it was under the first deed.
The defendants had prepared a third deed, which witness Sims testified contains a correct description. Defendants had this deed recorded. This third deed has the effect of correcting the first deed and should be confirmed.
Even if the second deed had been valid, plaintiffs would have had to plead and prove fraudulent or grossly negligent misstatements by defendants upon which plaintiffs relied before purchasing the property. In Fillegar v. Walker (1936), 54 Ohio App. 262, 6 N.E.2d 1010, 23 Ohio Law Abs. 20, the court's syllabus is as follows:
"In an action by a purchaser of farm property against the vendor to recover damages for a deficiency claimed to exist in the statement of acreage following the description in the deed, brought four years after taking possession, the property being irregular in shape and the premises having been viewed before the purchase, the purchaser must, in order to recover, prove actual fraud upon the part of the vendor, or that the vendor's representations were of a character which from their nature showed that he must have known them to be untrue, or that he was guilty of culpable negligence amounting to fraud."
Plaintiffs admit that defendants made no fraudulent statements. The evidence shows they said nothing about the property including the Wolf Pen Road frontage until after the sale was executed and the second deed prepared.
Plaintiffs have not shown the amount of any damages by reason of the alleged breach of warranty. The measure of such damages is defined in 15 Ohio Jurisprudence 2d page 92, Covenants, Section 101:
"In the event of a partial breach of a covenant of warranty by reason of the failure of title to a portion of the estate conveyed, there must be an apportionment of the damages, based upon the relative value of that portion to which title fails and that portion to which the title is good. Thus, when the title fails for a one-tenth part in value of the premises, the party recovers but one-tenth of the consideration and interest."
Plaintiffs have not shown the relative values of the portion owned by Mrs. Lisk and that formerly owned by defendants. The value could not reasonably be apportioned according to acreage. The Lisk portion is unimproved, steep hillside, whereas defendants' portion is more level, fronts on a paved road, and contains a house and other improvements.
Defendants' counsel is requested to prepare and submit a journal entry authorizing defendants to amend their answer to conform with the facts proved. Section 2309.58, Revised Code. The entry shall order the second deed (Plaintiffs' Exhibit 1) rescinded, the third deed (Plaintiffs' Exhibit 2) confirmed, the petition dismissed, and judgment awarded to defendants, with their costs.
Judgment for defendants.