Opinion
No. 27401
Decided November 29, 1939.
Leases — Acknowledgment on same sheet of paper — Section 8510, General Code — Substantial compliance with statute — Separate sheets bound with rivets.
A written lease demising land for a term of more than three years and consisting of separate sheets of paper so bound together with rivets that none of the sheets can be removed without mutilation of the rivets or sheets or both, some of which sheets contain only certificates of acknowledgment of the signing of the lessors, constitutes a substantial compliance with Section 8510, General Code, which requires the acknowledgment to be certified on the same sheet on which the instrument is written or printed.
APPEAL from the Court of Appeals of Jefferson county.
On June 29, 1934, the plaintiff, S. S. Kresge Company, filed a petition in the Court of Common Pleas of Jefferson county, Ohio, against the defendants, Frank A. Butte, Lena Butte, William P. Butte, John C. Butte, Philipina P. Kindel and Wilhelmina S. Brunner, praying for a declaratory judgment adjudging a certain lease to create a tenancy from year to year for the reason that the certificates of acknowledgment were not on the same sheet with the written instrument.
The lease in question, which was executed on or about September 27, 1928, by the S. S. Kresge Company as lessee, by the above named defendants as lessors and by the husbands and wife of lessors and recorded in Volume 22, page 532, Records of Leases, Jefferson county, Ohio, according to its terms demised premises on Market street in Steubenville, Ohio, for the term of thirty years. At that time Lena Butte was seized of a life estate in the premises and the remaining lessors were seized of an estate in remainder.
In April, 1934, the parties to the lease (other than John C. Butte, Wilhelmina S. Brunner and Earl R. Brunner) reacknowledged the instrument and certificates of reacknowledgment were placed on the back of the sheet (with the acknowledgment of John C. Butte originally placed thereon) on the face of which the testatum clause, the signatures of the parties and the attestations of the witnesses appear.
The defendants maintain that the original certificates of acknowledgment were so attached to the instrument of lease as to answer the requirements of law in this state; but, further maintain that, if such certificates did not answer those requirements, the certificates of reacknowledgment did and the lease was thereby rendered valid for the full term. After the lease was reacknowledged it was re-recorded in volume 24, page 283, record of leases in such county.
Defendants by way of cross-petition sought reformation of the lease in case the court held that instrument effectual to create a leasehold estate from year to year only.
The Court of Common Pleas held that the lease as recorded in volume 22, page 532, of such records, was duly executed and acknowledged and entered judgment in favor of the defendants.
On appeal on questions of law the Court of Appeals found that under the undisputed evidence the lease was not duly acknowledged by the lessors and was defectively executed under the laws of Ohio; but further found that the defectively executed lease was a valid contract to execute a lease for the "same term and tenor." Thereupon the appellate court, entering the judgment which it deemed the trial court should have entered, adjudged that the contract for a lease should be reformed in accordance with the undisputed evidence so that the certificates of acknowledgment would conform to the provisions of Section 8510, General Code.
This court ordered the record to be certified.
Messrs. Galvin Babin and Mr. B.H. Schwartz, for appellant.
Mr. Ralph B. Cohen and Mr. Thos. S. Jones, for appellees.
Although the lease involved here as originally acknowledged purports to demise the premises described therein for a term of thirty years, the plaintiff, appellant herein, contends the instrument gives rise to an estate only from year to year for the reason that the acknowledgments are not all certified "on the same sheet on which the instrument is written or printed" as required by Section 8510, General Code. It is conceded that in other respects the lease was executed with due formalities.
The controlling inquiry therefore is as to whether the original acknowledgments were certified according to law. If these certificates comply with the statutes of Ohio, the lease is a valid and binding obligation and there is no need to concern ourselves with the effect of the reacknowledgment; nor will it be necessary to consider defendants' alleged right to reformation except in determining the form of the judgment to be entered in this court.
Section 8510, General Code, reads: "A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor, mortgagor, or lessor, and such signing be acknowledged by the grantor, mortgagor, or lessor in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing also must be acknowledged by the grantor, mortgagor, or lessor before a judge of a court of record in this state, or a clerk thereof, a county auditor, county surveyor, notary public, mayor, or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto."
In this connection it is important to bear in mind Section 8517, General Code, which provides: "Nothing in this chapter contained shall affect the validity of any lease of school or ministerial lands, for any term not exceeding ten years; or of any other lands, for any term not exceeding three years; or require such lease to be attested, acknowledged or recorded." As the lease in controversy is for a term of more than three years, Section 8510 governs.
Although the latter section has been in force in substantially its present form since 1831, there are few cases interpreting it that bear upon the point of controversy. In Winkler v. Higgins, 9 Ohio St. 599, the certificate of acknowledgment was made "upon a separate strip of paper attached to the deed by a wafer, with the officer's seal upon the same," and it was held that the certificate did not comply with the statute; but in Norman v. Shepherd, 38 Ohio St. 320, involving a mortgage deed written upon two sheets of paper attached together by two brass fastenings, on the second sheet of which appeared a part of the mortgage deed, the signatures of the grantors and their seals, the signatures of the witnesses, and the certificate of acknowledgment, the instrument was held valid.
Here we have a factual situation somewhat different as to eight of the nine certificates of acknowledgment. The original lease was offered in evidence and is before us. It consists of nineteen sheets of paper, eight by ten inches, with a blueprint of the leased premises at the back, all inclosed in paper covers of the same size as the sheets. There is no writing or typewriting on the back of any sheet except the sixteenth on the back of which is the certificate of acknowledgment of the lessor John C. Butte and nothing more. On the face of the first fifteen sheets is all the instrument of lease which precedes the testatum clause. On the face of the sixteenth sheet is the testatum clause followed by the signatures of the lessors and lessee, the attestation clause and the signatures of the attesting witnesses; then at the bottom and under those signatures is a recital to show that interlineations were made before the execution of the instrument. On the face of the seventeenth, eighteenth and nineteenth sheets appear merely eight separate certificates of acknowledgments, those of the lessee and all other parties. There are two acknowledgments of John C. Butte, of which one is certified on back of the sixteenth sheet as heretofore stated and the other on the seventeenth sheet. All the sheets, the blueprint and the covers are bound together in book form, that is on the side, by three brass staples and two brass rivets. The so-called staples are easily removed without injury to themselves or the paper; but the rivets can be removed only by mutilating them or the paper parts or both. Under these circumstances there is such permanence and unity to the document as to make the sheets, cover and blueprint one entity.
Since it is undisputed that the lease was made up and bound together in the foregoing manner at the time it was executed, attested and acknowledged, it remains only to inquire whether the statute was substantially complied with as to the acknowledgments.
When the provision now found in Section 8510, General Code, was enacted, more than a hundred years ago, deeds, mortgages and leases were usually and could easily be written in their entirety on a single sheet of paper. In recent years many of such instruments are so long that to write or print them on one sheet would require a roll of paper. Often, too, the acknowledgments are so numerous as to present the same difficulty. What the Legislature sought by the enactment of the provisions now found in Section 8510 was no doubt the prevention of fraud that might be readily perpetrated if the certificate of acknowledgment were on a sheet separate from the instrument itself. With respect to the lease in litigation this danger is eliminated because the certificates are bound to the other parts by rivets so as to make a unified whole. The better view appears to be that the instrument substantially complied with the statute.
It follows that the Court of Common Pleas was warranted in adjudging that the lease was executed and acknowledged according to law, and that the Court of Appeals erred in reaching the opposite conclusion and then adjudging a reformation on the undisputed facts. The judgment of each court, however, left the lease a binding and subsisting obligation between the parties. Since the parties were bound by the terms of the lease in either event, no prejudice resulted to plaintiff from its reformation.
The error committed by the Court of Appeals, not being prejudicial, the judgment of that court will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, MYERS, MATTHIAS and HART, JJ., concur.