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Baldwin's Ohio Revised Code Annotated Currentness

Title LIII. Real Property
Chapter 5301. Conveyances; Encumbrances (Refs & Annos)
Deeds, Mortgages, and Leases
5301.01 Acknowledgment of deeds, mortgages, land contracts, leases, and memoranda of trust
(A) A deed, mortgage, land contract as referred to in division (A)(2)(b) of section 317.08 of the Revised Code, or lease of any
interest in real property and a memorandum of trust as described in division (A) of section 5301.255 of the Revised Code
shall be signed by the grantor, mortgagor, vendor, or lessor in the case of a deed, mortgage, land contract, or lease or shall be
signed by the trustee in the case of a memorandum of trust. The signing shall be acknowledged by the grantor, mortgagor,
vendor, or lessor, or by the trustee, before a judge or clerk of a court of record in this state, or a county auditor, county
engineer, notary public, or mayor, who shall certify the acknowledgement and subscribe the official's name to the certificate
of the acknowledgement.
(B)(1) If a deed, mortgage, land contract as referred to in division (A)(2)(b) of section 317.08 of the Revised Code, lease of
any interest in real property, or a memorandum of trust as described in division (A) of section 5301.255 of the Revised Code
was executed prior to February 1, 2002, and was not acknowledged in the presence of, or was not attested by, two witnesses
as required by this section prior to that date, both of the following apply:
(a) The instrument is deemed properly executed and is presumed to be valid unless the signature of the grantor, mortgagor,
vendor, or lessor in the case of a deed, mortgage, land contract, or lease or of the settlor and trustee in the case of a
memorandum of trust was obtained by fraud.
(b) The recording of the instrument in the office of the county recorder of the county in which the subject property is situated
is constructive notice of the instrument to all persons, including without limitation, a subsequent purchaser in good faith or
any other subsequent holder of an interest in the property, regardless of whether the instrument was recorded prior to, on, or
after February 1, 2002.
(2) Division (B)(1) of this section does not affect any accrued substantive rights or vested rights that came into existence
prior to February 1, 2002.
CREDIT(S)
(2007 S 134, eff. 1-17-08;2004 H 135, eff. 7-20-04;2001 H 279, eff. 2-1-02;1994 S 114, eff. 8-10-94; 129 v 999, eff. 8-11-
61; 127 v 1039; 1953 H 1; GC 8510)
UNCODIFIED LAW
2001 H 279, § 3, eff. 2-1-02, reads:
The General Assembly declares its intent that the amendment made by this act to section 5301.01 of the Revised Code is
retrospective in its operation and is remedial in its application to instruments described in that section that were executed or
recorded prior to the effective date of this act, except that the amendment does not affect any substantive rights or vested
rights that came into existence prior to the effective date of this act.
HISTORICAL AND STATUTORY NOTES
Pre-1953 H 1 Amendments: 120 v 229; RS 4106
Amendment Note: 2007 S 134 deleted “settlor and” before “trustee” throughout division (A).
Amendment Note: 2004 H 135 substituted “(A)(2)(b)” for “(B)(2)” and “February 1, 2002” for “the effective date of this
amendment” throughout.
Amendment Note: 2001 H 279 designated division (A); deleted the second sentence of newly designated division (A);
added new division (B); and made changes to reflect gender neutral language. Prior to deletion the second sentence of
division (A) read:
“The signing shall be acknowledged by the grantor, mortgagor, vendor, or lessor, or by the settlor and trustee, in the presence
of two witnesses, who shall attest the signing and subscribe their names to the attestation.”
Amendment Note: 1994 S 114 rewrote this section, which previously read:
“A deed, mortgage, land contract as referred to in division (B)(2) of section 317.08 of the Revised Code, or lease of any
interest in real property must be signed by the grantor, mortgagor, vendor, or lessor, and such signing must be acknowledged
by the grantor, mortgagor, vendor, or lessor in the presence of two witnesses, who shall attest the signing and subscribe their
names to the attestation. Such signing must be acknowledged by the grantor, mortgagor, vendor, or lessor before a judge of a
court of record in this state or a clerk thereof, a county auditor, county engineer, notary public, mayor, or county court judge,
who shall certify the acknowledgment and subscribe his name to the certificate of such acknowledgment.”
CROSS REFERENCES
Certain promises and agreements arising from gambling debts void, 3763.01
Clerk of the court of common pleas, powers and duties, 2303.07
Conservancy district, duty and powers of secretary or treasurer to take acknowledgments, 6101.12
County engineer, power to take and certify acknowledgments of deeds, 315.23
Deed, mortgage, or lease of interest in land by power of attorney; form and effect, 1337.02, 1337.03
Endorsement on and receipt for deed, 317.12
Execution and evidence of power of attorney, 1337.06
Fees of recorder, use of separate instrument, 1337.10
Land installment contract, requirements for execution and recording, 5313.02
Notary public, powers and jurisdiction, 147.07
Power of attorney, 1337.01
Powers of county court judges, 1907.18
Printing of names on instrument of title to real estate when written signatures are illegible, 317.11
Registration of land titles, assignment of lease, encumbrance, or lien upon registered land, waivers of priority of lien,
5309.51
Registration of land titles, statements in instrument constituting a person an attorney in fact, 5309.75
Statute of frauds; interests in land to be granted in writing, 1335.04
LIBRARY REFERENCES
Deeds 26, 47.

Landlord and Tenant 23, 25.
Mortgages 40, 59.
Vendor and Purchaser 19, 24.
Westlaw Topic Nos. 120, 233, 266, 400.
C.J.S. Deeds §§ 23, 35.
C.J.S. Landlord and Tenant §§ 27, 211, 216 et seq.
C.J.S. Mortgages §§ 99, 126.
C.J.S. Vendor and Purchaser §§ 33, 34, 41.
RESEARCH REFERENCES
ALR Library
25 ALR 2nd 1124, Sufficiency of Certificate of Acknowledgment.
29 ALR 919, Sufficiency of Certificate of Acknowledgment.
Encyclopedias
91 Am. Jur. Proof of Facts 3d 345, Acknowledgment of Real Property Instruments and Other Acknowledgments.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 1, Definition and Purpose of Acknowledgment.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 2, Taking of Acknowledgment as Ministerial Act.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 7, Deeds, Mortgages, Land Contracts, Leases, and Memoranda of
Trust.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 16, Corporate Officers and Stockholders.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 18, Place of Taking; Limits of Officer's Jurisdiction.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 24, Sufficiency of Recitals in Certificate.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 28, for Purpose of Recording.
OH Jur. 3d Acknowledgmts, Affid., Oaths, & Notar. § 70, Jurisdiction and Powers.
OH Jur. 3d Adjoining Landowners § 25, Execution and Recording of Agreement.
OH Jur. 3d Agency & Independent Contractors § 31, Creation Formalities.
OH Jur. 3d Agency & Independent Contractors § 35, Recordation.
OH Jur. 3d Cancellation & Reform. of Instruments § 78, Defective Execution of Instrument; Constitutional and Statutory
Provisions.
OH Jur. 3d Counties, Townships, & Municipal Corp. § 797, Execution of Conveyance or Lease.
OH Jur. 3d Courts & Judges § 215, Certificates and Certified Copies.
OH Jur. 3d Deeds § 25, Signature.
OH Jur. 3d Deeds § 26, Acknowledgment.
OH Jur. 3d Deeds § 28, Attestation.
OH Jur. 3d Deeds § 29, Attestation--Competency to Attest.
OH Jur. 3d Easements & Licenses in Real Property § 18, Statutory Requirements, Generally.
OH Jur. 3d Evidence & Witnesses § 422, Testimony of Subscribing Witness Not Required.
OH Jur. 3d Frauds, Statute of § 113, Authority of Agent, Generally.
OH Jur. 3d Landlord & Tenant § 41, Leases Excepted from Statutory Requirements.
OH Jur. 3d Landlord & Tenant § 43, Necessity of Writing.
OH Jur. 3d Landlord & Tenant § 44, Signatures.
OH Jur. 3d Landlord & Tenant § 45, Acknowledgments.
OH Jur. 3d Landlord & Tenant § 46, Attestation.
OH Jur. 3d Landlord & Tenant § 48, Recording--Memorandum of Lease.
OH Jur. 3d Landlord & Tenant § 51, Effect of Noncompliance With Execution Requirements.
OH Jur. 3d Landlord & Tenant § 52, Effect of Noncompliance With Execution Requirements--Part Performance.
OH Jur. 3d Landlord & Tenant § 60, Necessity of Written Authority; Power of Attorney.
OH Jur. 3d Landlord & Tenant § 124, Trial--Authentication of Evidence.
OH Jur. 3d Landlord & Tenant § 212, Formal Requisites; Necessity of Writing--Assignment of Recorded Lease; Recordation
of Assignment.
OH Jur. 3d Landlord & Tenant § 400, Cancellation of Recorded Lease; Recordation of Cancellation.
OH Jur. 3d Landlord & Tenant § 477, Formal Requisites for Renewal.
OH Jur. 3d Mortgages & Deeds of Trust § 81, Open-End Mortgages--Limitation of Loan Indebtedness.
OH Jur. 3d Mortgages & Deeds of Trust § 92, Signature.
OH Jur. 3d Mortgages & Deeds of Trust § 93, Attesting Witnesses No Longer Required.
OH Jur. 3d Mortgages & Deeds of Trust § 94, Acknowledgment and Certificate of Acknowledgment.
OH Jur. 3d Mortgages & Deeds of Trust § 95, Acknowledgment and Certificate of Acknowledgment--Competency of
Acknowledging Officer.
OH Jur. 3d Mortgages & Deeds of Trust § 96, Instruments Executed and Acknowledged Outside the State.
OH Jur. 3d Mortgages & Deeds of Trust § 98, Mortgage Made Pursuant to Power of Attorney.
OH Jur. 3d Mortgages & Deeds of Trust § 112, Requirement of Recording and Effective Date of Mortgages.
OH Jur. 3d Mortgages & Deeds of Trust § 170, Stipulations as to Priority; Waiver--Statutory Provisions Relating to Waiver
of Priority of Mortgages.
OH Jur. 3d Mortgages & Deeds of Trust § 216, Statutory Provisions as to Release and Discharge of Mortgages.
OH Jur. 3d Mortgages & Deeds of Trust § 220, Partial Release--Execution and Recording.
OH Jur. 3d Mortgages & Deeds of Trust § 273, Creation of Power; Formal Requisites.
OH Jur. 3d Mortgages & Deeds of Trust § 373, Matters Considered on Appeal.
OH Jur. 3d Mortgages & Deeds of Trust § 467, Attestation and Acknowledgment.
OH Jur. 3d Records & Recording § 72, Defectively Executed and Otherwise Defective Instruments.
Forms
Ohio Forms Legal and Business § 2:2, Effect of Dower--Rights of Married Women.
Ohio Forms Legal and Business § 4:2, Form Drafting Principles.
Ohio Forms Legal and Business § 5:5, Site Acquisition Documents--Formal Requirements.
Ohio Forms Legal and Business § 1:26, Execution and Acknowledgment.
Ohio Forms Legal and Business § 1:27, Recordation.
Ohio Forms Legal and Business § 1A:3, Formal Requirements--Execution and Recordation.
Ohio Forms Legal and Business § 1B:6, Formal Requirements--Execution and Recordation.
Ohio Forms Legal and Business § 1C:5, Execution and Recordation.
Ohio Forms Legal and Business § 2:12, Execution--Attestation--Acknowledgment.
Ohio Forms Legal and Business § 2:14, Recordation.
Ohio Forms Legal and Business § 2:17, Introduction.
Ohio Forms Legal and Business § 2A:5, Execution and Attestation.
Ohio Forms Legal and Business § 2A:7, Recordation.
Ohio Forms Legal and Business § 2B:5, Formal Requirements--Execution and Recordation.
Ohio Forms Legal and Business § 3:10, Formal Requirements.
Ohio Forms Legal and Business § 3:15, Drafting a Mortgage.
Ohio Forms Legal and Business § 3:64, Checklist--Drafting a Release of a Mortgage or Deed of Trust.
Ohio Forms Legal and Business § 3:65, Satisfaction of Mortgage.
Ohio Forms Legal and Business § 3:66, Release of Part of Mortgaged Premises.
Ohio Forms Legal and Business § 3:69, Form Drafting Principles--Transfer of Mortgagee's Interest.
Ohio Forms Legal and Business § 4C:8, Formal Requirements.

Ohio Forms Legal and Business § 5:51, Declaration of Covenants--Formal Requirements.
Ohio Forms Legal and Business § 7B:2, Oil and Gas Leases.
Ohio Forms Legal and Business § 7B:3, Deeds Affecting Oil and Gas Rights.
Ohio Forms Legal and Business § 8:33, Checklist--Drafting Commercial Property Lease.
Ohio Forms Legal and Business § 8:54, Farm Lease.
Ohio Forms Legal and Business § 8:58, Commercial Property Leases--Office Space in Building.
Ohio Forms Legal and Business § 8:59, Commercial Property Leases--Office Space in Building--Another Form.
Ohio Forms Legal and Business § 8:66, Commercial Property Leases--Business Premises.
Ohio Forms Legal and Business § 8:78, Residential Lease--Unfurnished House.
Ohio Forms Legal and Business § 12B:2, Form Drafting Principles.
Ohio Forms Legal and Business § 12B:3, Acknowledgment and Recordation.
Ohio Forms Legal and Business § 16:48, Checklist--Drafting Assignment of Secured Obligation.
Ohio Forms Legal and Business § 16:82, Assignment--Contract for Sale of Real Estate.
Ohio Forms Legal and Business § 16:94, Lessor's Assignment of Rent Under Lease--Repurchase Agreement in Event of
Lessee's Default.
Ohio Forms Legal and Business § 2:130, Definition.
Ohio Forms Legal and Business § 2:131, General Background.
Ohio Forms Legal and Business § 25:45, Memorandum of Trust.
Ohio Forms Legal and Business § 25:46, Formal Requirements.
Ohio Forms Legal and Business § 4B:45, Ground Lease.
Ohio Forms Legal and Business § 4B:47, Contract of Sale of Condominium Unit.
Ohio Forms Legal and Business § 4B:76, Certificate of Satisfaction of Lien.

Ohio Forms and Transactions § 15:1, Options to Purchase Real Estate.
Ohio Forms and Transactions § 16:1, Deeds and Deed Forms.
Ohio Forms and Transactions § 17:7, Execution of Mortgages and Land Contracts.
Ohio Forms and Transactions § 18:1, Execution of Leases.
Ohio Forms and Transactions § 18:2, Recording of Leases.
Ohio Forms and Transactions § 22:2, Notarial Acts.
Ohio Forms and Transactions § 24:2, Formal Requirements for Powers of Attorney.
Ohio Forms and Transactions § 24:3, Recording Powers of Attorney.
Ohio Forms and Transactions § 24:9, Limited Power of Attorney for Disabled Person or in the Event of Disability.
Ohio Forms and Transactions § 27:3, Waiver or Release of Mortgage.
Ohio Forms and Transactions § 27:5, Release of Easement.
Ohio Forms and Transactions § 21:17, Property Management Agreement.
American Jurisprudence Legal Forms 2d § 179:158, Ohio--Mortgage.
American Jurisprudence Legal Forms 2d § 179:159, Ohio--Mortgage--Traditional Form.
American Jurisprudence Legal Forms 2d § 179:476, Ohio--Mortgage Extension Agreement.
Treatises and Practice Aids
Sowald and Morganstern, Baldwin's Ohio Practice, Domestic Relations Law § 4:10, Property Rights During Marriage--
Individual Ownership--Mortgages, Deeds, and Insurance.
Sowald and Morganstern, Baldwin's Ohio Practice, Domestic Relations Law § 9:19, Elements of Agreement--Division of
Marital Property--Real Property.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 33:4, Testamentary Addition to Existing Trust--Recording
Memorandum of Trust.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 61:1, General; Written.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 79:2, Power of Attorney for Foreign Beneficiary.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 14:20, Transfer-On-Death Deed.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 54:53, Fiduciary's Deed--Statutory--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 55:51, Fiduciary's Deed--Statutory--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 60:45, Revocation of Power of Attorney--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 60:46, Removal of Attorney in Fact and Appointment of
Successor--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 60:48, Do-Not-Resuscitate Order--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 61:45, Power of Attorney--Short Form--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 61:55, Revocation of Power of Attorney--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 61:56, Removal of Attorney in Fact and Appointment of
Successor--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 61:58, Do-Not-Resuscitate Order--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 73:18, Deed of Fiduciary Under Power of Sale in Will--
Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 74:18, Deed of Fiduciary Under Power of Sale in Will--
Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 89:22, Application for Release of Estate by Mortgagee--
Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 90:22, Application for Release of Estate by Mortgagee--
Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 91:37, Fiduciary's Deed Under Testamentary Power--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 91:41, Fiduciary's Deed--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 92:34, Fiduciary's Deed Under Testamentary Power--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 92:38, Fiduciary's Deed--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 97:18, Fiduciary's Deed Under Private Sale--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 97:19, Fiduciary's Deed Under Public Sale--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 97:23, Mortgage to Secure Deferred Payments--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 30:211, Irrevocable Trust--Insurance--Form.
Carlin, Baldwin's Ohio Practice, Merrick-Rippner Probate Law § 30:214, Irrevocable Trust--Annual Exclusion--Form.
Bogert - The Law of Trusts and Trustees § 190, Assignment of Beneficiary's Interest--Statute of Frauds.
White, Ohio Landlord Tenant Law § 2:3, Who Must Sign the Lease/Rental Agreement.
White, Ohio Landlord Tenant Law § 2:4, Other Requisites of the Lease/Rental Agreement.
White, Ohio Landlord Tenant Law § 15:2, Formal Requisites for Renewal of Term.
Hennenberg and Reinhart, Ohio Criminal Defense Motions F 1:10, Power of Attorney--Introduction and General Forms.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 7:6, Recording--Effect from Time of Filing (Not Reproduction).
Kuehnle and Levey, Ohio Real Estate Law and Practice § 8:4, Memorandum of Trust (RC 5301.255).
Kuehnle and Levey, Ohio Real Estate Law and Practice § 8:5, Deed of Sheriff, Master Commissioner, or Special Master in
Judicial Sale as Evidence of Regularity of Proceedings.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 8:9, Installment Contracts for the Sale of Land Not Required to be
Performed Within One Year.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 15:2, Distinguishing Marketable Title Act from Statute of
Limitations and Curative Acts.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 16:2, Curative Acts--Defects Declared Immaterial.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 16:7, Curative Acts--Correction by Court Review.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 25:2, Powers of Attorney--Content of Powers of Attorney.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 25:5, Powers of Attorney--Acts Without Knowledge of Death or
Incompetency.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 25:8, Powers of Attorney--Formalities of Execution.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 25:9, Powers of Attorney--Recordation.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 26:5, Easements--Creation--Express--By Deed--Statute of Frauds.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 3:22, Dower--Relinquishment, Forfeiture, Assignment and Waste.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 34:1, Mortgages--Execution and Priorities--Requirements for
Execution.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 34:2, Mortgages--Recording--Legal Effect.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 43:4, Land Installment Contracts--Delivery to Auditor, Engineer
and Recorder.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 43:7, Land Installment Contracts--Recordation and Notice.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 43:9, Land Installment Contracts--Recordation of Assignment,
Partial Release and Cancellation.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 45:2, Requisites of a Binding Lease.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 47:1, Oil and Gas Leases--Statutory Requirements--Execution--
Recordation.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 47:2, Oil and Gas Leases--Defective Execution.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 7:14, Public Records--Instruments Entitled and Not Entitled to
Record.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 7:27, Public Records--Memorandum of Trust--RC 5301.255.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 7:28, Public Records--Deed of Sheriff, Master Commissioner, or
Special Master in Judicial Sale as Evidence of Regularity of Proceedings.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 7:31, Public Records--Land Installment Contracts and Other
Contracts for the Sale of Land.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 9:11, Vendor's Liens--Necessity of Express Reservation in Deed.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 9:13, Vendor's Liens--Release of Vendor's Lien.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 11:10, Ohio Property Tax Liens--General Taxes--Certificate of
Authority to Pay Taxes.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 20:23, Conveyancing--Grantors--Trustee--Use of Memorandum of
Trust and Certificate of Trust.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 20:65, Conveyancing--Warranties--Quitclaim Deed--Effect.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 20:68, Conveyancing--Execution--Witnesses.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 20:69, Conveyancing--Acknowledgment.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 21:10, Execution--Generally.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 21:11, Execution--Dower--Release of Inchoate Dower.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 21:18, Execution--By Disabled Person.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 21:19, Execution--Witnesses--Disqualification.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 21:24, Execution--Conclusiveness of Acknowledgment.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 21:25, Execution--Interest of Grantee Under Defectively Executed
Deed.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 27:15, Easements and Covenants--Notice--In Chain of Title, But
Not Entitled to be in Chain of Title.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 33:19, Open-End Mortgage--Priority of Subsequent Advances--
Exceptions--Limiting Priority of Further Advances Through Written Notice by Mortgagor.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 36:14, Pre-Foreclosure Preparation--Document Review.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 56:69, Conveyances--Fiduciary Deed--Statutory Form.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 56:125, Mortgages--Statutory Form.
Kuehnle and Levey, Ohio Real Estate Law and Practice § 45:6.50, Holding Over.
Restatement (2d) of Property, Don. Trans. § 32.3, Document of Transfer Relating to Land.
LAW REVIEW AND JOURNAL COMMENTARIES
Caveat Emptor Reaffirmed, Stanley B. Kent. 59 Clev B J 318 (September 1988).
The Ever-So-Vague Power Of Attorney Relied Upon By The Attorney-In-Fact To Sell Real Property Of His Principal: Under
What Circumstances Must the Purchaser Accept the Deed Executed by the Attorney-in-fact?, Robert L. Hausser. 57 Title
Topics 5 (January 1990).
How May Real Property Lawyer Become Liable To Third Parties For Title Mistakes? 55 Title Topics 3 (July 1988).
“Idem Sonans” Doctrine--To What Extent Has The Doctrine Been Eroded In Ohio? Are The Ohio State Bar Title Standards
Any Help? Should Ohio Adopt The “Model Name Variance Act”?, Robert L. Hausser. 57 Title Topics 5 (February 1990).
Land Contract Recording Act, Paul E. Lacouture. 22 Ohio St L J 730 (1961).
Leases--Real Property--Acknowledgment of Lease--Attachment of Certificate of Acknowledgment, Comment. 10 Ohio St B

Ass'n Rep 513 (1938).
The Ohio Statute of Frauds of Conveyances and Leases of Interests in Real Property, Note. 38 U Cin L Rev 135 (1969).
Ohio Theory of a Mortgage, Charles C. White. 3 U Cin L Rev 405 (1929).
Residential Renewal Leases and the Ohio Statute of Conveyances: Invalidation and Subsequent Treatment, Note. 27 Clev St
L Rev 231 (1978).
S.B. 134: The Memorandum of Trust Has Become More Useful. Mark. E. Vannatta, 18 Prob. L.J. Ohio 134
(January/February 2008).
Some Peculiarities of the Ohio Law of Mortgages on Real Property, Robert C. Pugh. 4 U Cin L Rev 297 (1930).
Tax Reform Act of 1986--Requirement to Report Real Estate Transactions to Internal Revenue Service [Form 1099-B],
Robert L. Hausser. 54 Title Topics 5 (September 1987).
Time is of the Essence--Avoid Overlawyering When Reviewing Purchase Contracts, Mark G. Gambill. Cin B Ass'n Rep 16
(February 1990).
Toward a Prudential and Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham. 68 U Cin L Rev 269 (Winter
2000).
What Can the Realtor Expect from the Lawyer in a Real Estate Transaction?, Robert G.Morris. 37 Tol B Ass'n News 10
(October 1989).
NOTES OF DECISIONS
In general 1
Acknowledgment: certification; witnesses, deeds 6
Arbitration clauses in mortgages 35
Constitutional issues 33
DeedsDeeds - Acknowledgment: certification; witnesses 6
Deeds - Authority to execute 26
Deeds - Consideration 7
Deeds - Covenants 24
Deeds - Deed of trust 8
Deeds - Delivery 5
Deeds - Description 32
Deeds - Destruction or loss of deed 18
Deeds - Minors; capacity 17
Deeds - Mistake or defect; cure 14
Deeds - Municipal corporations 13
Deeds - Parol evidence 12
Deeds - Recording 19
Deeds - Sheriff's deeds 20
Deeds - Undue influence; duress; fraud 16
Deeds - Validity generally 29
Easements and licenses 15
LeasesLeases - Acknowledgment; certification; witnesses 10
Leases - Assignment 30
Leases - Authority to execute 27
Leases - Covenants 28
Leases - Guarantee of lessee's performance 3
Leases - Invalid or defective; part performance 2
Leases - Parol evidence 11
Leases - Recording 4
Mistake; defect; cure, mortgages 23
Mortgage foreclosure 34
MortgagesMortgages - In general 22
Mortgages - Acknowledgment; witnesses 9
Mortgages - Authority to execute 25
Mortgages - Mistake; defect; cure 23
Mortgages - Recording 21
Power of attorney 31
1. In general
Real property, the title to which is vested in the members of a partnership, but which is in fact owned and used by the firm as
partnership property, although regarded in equity as part of the assets of the concern and as such subject to some of the
incidents of personal property, is nevertheless in law real estate, and it can only be mortgaged or conveyed as such. Miller v.
Proctor (Ohio 1870) 20 Ohio St. 442. Partnership 68(1)
Former father-in-law was entitled to compensation from former son-in-law in amount of $36,000, less payments already
made by son-in-law, in father-in-law's unjust enrichment claim against son-in-law for benefit of house son-in-law knew was
derived from father-in-law; son-in-law was entitled to credit for monthly payments made before refinancing house, but was
not entitled to credit for $10,000 he was to pay former wife upon their child reaching age of 18, and son-in-law could not be
liable for loan interest of which he was unaware. Willey v. Blackstone (Ohio App. 5 Dist., 12-22-2008) 2008 -Ohio- 7035,
2008 WL 5456358. Implied and Constructive Contracts 3; Implied and Constructive Contracts 110
Attorney-approval clause in real estate purchase contract, providing that the terms and conditions of the contract were subject
to approval of parties' attorneys, did not require vendors or their counsel to timely and unambiguously communicate
disapproval of the contract to purchasers within the approval period, in order to avoid being bound by the contract, and thus
vendors' failure to give any notice of disapproval by their attorney before the approval deadline did not operate as satisfaction
or waiver of the attorney-approval contingency; attorney-approval clause did not expressly require written notice of
disapproval and did not state that, absent notice of disapproval, the contract either became or remained binding. Kellie Auto
Sales, Inc. v. Rahbars & Ritters Ents., L.L.C. (Ohio App. 10 Dist., 08-23-2007) 2007-Ohio-4312, 2007 WL 2398483. Vendor
And Purchaser 79
Real estate purchase contract, containing attorney-approval clause that expressly conditioned the binding nature of the final
terms and conditions of the contract on the approval of the parties' respective attorneys, was only conditionally accepted until
attorney approval was obtained, and thus no binding contract could be formed until the approval condition was satisfied.
Kellie Auto Sales, Inc. v. Rahbars & Ritters Ents., L.L.C. (Ohio App. 10 Dist., 08-23-2007) 2007-Ohio-4312, 2007 WL
2398483. Vendor And Purchaser 79
Fire and smoke damage to several apartment units, which required one unit to be completely gutted, amounted to substantial
damage under the terms of purchase contract for apartment building, which gave purchaser the right to rescind if any of the
property was substantially damaged prior to closing, and thus, purchaser was entitled to rescind contract. Rosepark
Properties, Ltd. v. Buess (Ohio App. 10 Dist., 06-20-2006) 167 Ohio App.3d 366, 855 N.E.2d 140, 2006-Ohio-3109. Vendor
And Purchaser 84
There was no conveyance, compliance with statutory recording requirement, or unity, then severance, of estates, and thus
neighbors did not have express or implied sewer easement over landowner's property. Kienzle v. Myers (Ohio App. 6 Dist.,
06-02-2006) 167 Ohio App.3d 78, 853 N.E.2d 1203, 2006-Ohio-2765, appeal not allowed 111 Ohio St.3d 1416, 854 N.E.2d
1094, 2006-Ohio-5083. Municipal Corporations 712(2)
Purchaser was not entitled to both return of earnest money and specific performance of real estate purchase contract. Wyant
v. Marble (Ohio App. 1 Dist., 10-29-1999) 135 Ohio App.3d 559, 735 N.E.2d 9. Specific Performance 129
Lease agreement remained in effect after property was sold to purchaser at foreclosure sale, and thus tenant was contractually
obligated to pay rent to purchaser, where lease agreement contained attornment clause under which tenant agreed to attorn to
purchaser in event of a foreclosure sale and to recognize purchaser as lessor. Brandon/Wiant Co. v. Teamor (Ohio App. 8
Dist., 01-26-1998) 125 Ohio App.3d 442, 708 N.E.2d 1024, appeal not allowed 82 Ohio St.3d 1415, 694 N.E.2d 77. Landlord
And Tenant 15
Lease agreement's attornment clause, under which tenant agreed to attorn to purchaser of property in foreclosure sale and to
recognize purchaser as lessor, was not void as against public policy; tenant retained right to enforce obligations owed him
under lease against purchaser, and there was nothing in record reflecting that tenant was in unequal bargaining position at
time lease was executed. Brandon/Wiant Co. v. Teamor (Ohio App. 8 Dist., 01-26-1998) 125 Ohio App.3d 442, 708 N.E.2d
1024, appeal not allowed 82 Ohio St.3d 1415, 694 N.E.2d 77. Landlord And Tenant 15
Provision of a real estate purchase-and-sale contract requiring forfeiture of the purchaser's earnest money upon his default,
regardless of whether the vendors were injured, was a reasonable liquidated damages clause, not a penalty clause, and thus
was enforceable; however, the 7.25% ratio between the $5,000 in earnest money and the $69,000 purchase price was
“pushing the envelope” of enforceability. Cochran v. Schwartz (Ohio App. 2 Dist., 06-13-1997) 120 Ohio App.3d 59, 696
N.E.2d 656. Damages 81
Imposing duty on landlord in commercial lease to mitigate damages once tenant has abandoned premises assures that award
of damages will put injured party in as good a position as if contract had not been breached while affording least amount of
cost to defaulting party; this is in conformity with tenets of contract law. New Towne L.P. v. Pier 1 Imports (U.S.), Inc. (Ohio
App. 6 Dist., 07-26-1996) 113 Ohio App.3d 104, 680 N.E.2d 644. Landlord And Tenant 195(1)
Commercial lease term negating landlord's duty to mitigate damages once tenant has abandoned premises did not violate
public policy, and, therefore, was enforceable, as it did not violate any principle of law or injure welfare of public in any way.
New Towne L.P. v. Pier 1 Imports (U.S.), Inc. (Ohio App. 6 Dist., 07-26-1996) 113 Ohio App.3d 104, 680 N.E.2d 644.
Landlord And Tenant 195(1)
Requiring landlord in commercial lease to mitigate damages once tenant has abandoned premises, by attempting to relet
abandoned premises, promotes most productive use of land and discourages injured parties from suffering avoidable
economic losses. New Towne L.P. v. Pier 1 Imports (U.S.), Inc. (Ohio App. 6 Dist., 07-26-1996) 113 Ohio App.3d 104, 680
N.E.2d 644. Landlord And Tenant 195(2)
In determining whether parties intended to be bound by letter agreements for office space leases that they had signed,
agreements were not ambiguous as all essential terms of contracts were set forth within four corners of the documents: lease
term, lease amounts, and percentages of increase in rent during lease period. Snell v. Salem Ave. Assoc. (Ohio App. 2 Dist.,
05-10-1996) 111 Ohio App.3d 23, 675 N.E.2d 555. Landlord And Tenant 24(1); Landlord And Tenant 200.7
Construction of written contracts and instruments of conveyance is matter of law. Stone v. Natl. City Bank (Ohio App. 8
Dist., 09-05-1995) 106 Ohio App.3d 212, 665 N.E.2d 746, stay granted 74 Ohio St.3d 1472, 657 N.E.2d 780, cause
dismissed 74 Ohio St.3d 1495, 658 N.E.2d 1064. Contracts 176(1)
Whether vendee was ready and willing to close purchase of real estate within the time of last contract extension and whether
time was of the essence in performance of contract were fact questions precluding summary judgment in action for specific
performance. Hackmann v. Dawley (Ohio App. 10 Dist., 07-18-1995) 105 Ohio App.3d 363, 663 N.E.2d 1342. Judgment
181(30)
Construction of instrument of conveyance is matter of law. Sedlak v. Solon (Ohio App. 8 Dist., 05-30-1995) 104 Ohio
App.3d 170, 661 N.E.2d 265, dismissed, appeal not allowed 74 Ohio St.3d 1418, 655 N.E.2d 738. Deeds 110
Purchaser who executed agreement to purchase property and then refused to do so after vendor performed its contractual
obligations was liable for damages caused by breach as purchaser failed to demonstrate any legal excuse not to perform real
estate contract. Garofalo v. Chicago Title Ins. Co. (Ohio App. 8 Dist., 05-23-1995) 104 Ohio App.3d 95, 661 N.E.2d 218.
Vendor And Purchaser 322
Purchase of realty is not shown where the purported vendee does not obtain financing, does not attend a closing, does not pay
real estate taxes, and is not listed as record owner of the property. Woodford v. Harrell (Franklin 1992) 78 Ohio App.3d 216,
604 N.E.2d 226.
Where the statute of conveyances requires certain formalities for the execution of an instrument, reformation cannot be
granted to supply these formalities. Delfino v. Paul Davies Chevrolet, Inc. (Ohio 1965) 2 Ohio St.2d 282, 209 N.E.2d 194, 31
O.O.2d 557. Reformation Of Instruments 12
One is not incapacitated to make and execute a lease or deed merely because of advanced years or physical infirmities, unless
such age and resulting infirmities impair his mental faculties until he is unable properly, intelligently, and fairly to protect his
property rights. The same rules as to mental capacity apply to deeds and other written instruments, such as leases, as apply to
wills. Monroe v. Shrivers (Morgan 1927) 29 Ohio App. 109, 162 N.E. 780, 6 Ohio Law Abs. 709.
This section does not define deeds and mortgages. National Bank of Columbus v. Tennessee Coal, Iron & R. Co. (Ohio 1900)
62 Ohio St. 564, 44 W.L.B. 20, 57 N.E. 450.
Statute makes no provision for the recording of land contracts. Wood Sash, Door & Paint Co. v. Burrows (Ohio Cir. 1903) 15
Ohio C.D. 781, 2 Ohio C.C.(N.S.) 213.
Instruments of encumbrance and mortgages of equitable interests fall under GC 8510, 8542. Wright v. Youtsey (Ohio
Com.Pl. 1898) 7 Ohio Dec. 172, 5 Ohio N.P. 57.
Conflict between commercial lease's general indemnification provision, requiring tenant to hold landlord harmless against
“claims and demands” against landlord, and specific provisions obligating landlord to insure leased premises against fire,
created ambiguity as to tenant's obligations with regard to fire that originated in tenant's store and that led to $1 million
insurance payment to landlord and insurer's lease-based subrogation action against tenant; thus, issue in subrogation action of
whether tenant breached indemnification provision was for jury under Ohio law. Lexington Ins. Co. v. F.W. Woolworth Co.
(C.A.6 (Ohio), 11-01-2000) 230 F.3d 835. Landlord And Tenant 156
The purpose of the statute of deeds was to require permanent, solemn, and certain evidence of the change in ownership of
real estate by voluntary act. Berry v. Seawall (C.C.A.6 (Ohio) 1895) 65 F. 742, 13 C.C.A. 101.
Allegations that purchasers of certain “flipped” properties overpaid or lost benefit of the bargain on contracts for each of the
properties originally owned by vendor, and that vendor knew of the overpayment because he allegedly misrepresented actual
values, current rental status, and conditions of each of the properties, supported purchasers' unjust enrichment claim against
vendor. Bird v. Delacruz (S.D.Ohio, 10-28-2005) 411 F.Supp.2d 891. Implied And Constructive Contracts 3
Under Ohio law, lease clauses discussing tenant's use of leased premises are to be narrowly construed, with doubts regarding
presence of continuous operation obligation to be resolved in favor of tenant. Hamilton West Development, Ltd. v. Hills
Stores Co. (N.D.Ohio, 03-01-1997) 959 F.Supp. 434. Landlord And Tenant 44(1)
Under Ohio law, continuous operation obligation will be found in lease only in those circumstances in which language of
lease clearly and unambiguously supports conclusion that tenant agreed to be bound by such obligation or where implication
of such obligation is indispensable to effectuate intention of parties, and it appears from language used that it was so clearly
within contemplation of parties that they deemed it unnecessary to express it. Hamilton West Development, Ltd. v. Hills
Stores Co. (N.D.Ohio, 03-01-1997) 959 F.Supp. 434. Landlord And Tenant 44(1); Landlord And Tenant 45
Under Ohio law, provisions of commercial lease between shopping center and anchor store stating that store agreed to use
premises as “department store or supermarket” and to do so “on all regular business days except legal holidays, at least (8)
hours each day between 9:00 a.m. and 10:00 p.m.” did not impose obligation of continuous operation on store. Hamilton
West Development, Ltd. v. Hills Stores Co. (N.D.Ohio, 03-01-1997) 959 F.Supp. 434. Landlord And Tenant 44(1)
Purpose of Ohio statute requiring that mortgages must be acknowledged is to prevent fraud, and to provide reasonable
assurance that instrument is genuine. In re Fryman (Bkrtcy.S.D.Ohio, 07-15-2004) 314 B.R. 137. Mortgages 59
Under Ohio law, mortgage is entitled to priority over interest possessed by subsequent bona fide purchaser only if mortgage
is properly executed. In re Fryman (Bkrtcy.S.D.Ohio, 07-15-2004) 314 B.R. 137. Mortgages 151(1)
Payment language in real estate purchase contract between purchasers and vendors indicating that purchasers were to receive
a parcel of land with the balance of the purchase price financed by the vendors over a twenty-year term to be paid in monthly
payments, which language contained no prepayment or acceleration clauses, did not require vendors to accept prepayment,
despite purchasers' unilateral insertion of a prepayment clause into the promissory note; the purchase contract survived the
merger by deed, and purchasers could have drafted the contract for sale to include the prepayment clause but did not. Richter
v. Moreland (Ohio App. 12 Dist., Warren, 06-12-2006) No. CA2005-03-031, 2006-Ohio-2946, 2006 WL 1586648,
Unreported, appeal not allowed 111 Ohio St.3d 1469, 855 N.E.2d 1258, 2006-Ohio-5625. Vendor And Purchaser 77
Mortgagee was entitled to judgment of foreclosure, where mortgagor defaulted on promissory note and mortgage, balance
had been accelerated pursuant to acceleration clause of note, and $34,679 was due and owing on note. Bank One, N.A. v.
Lytle (Ohio App. 9 Dist., Lorain, 12-08-2004) No. 04CA008463, 2004-Ohio-6547, 2004 WL 2808915, Unreported, appeal
not allowed 105 Ohio St.3d 1471, 824 N.E.2d 541, 2005-Ohio-1186, reconsideration denied 105 Ohio St.3d 1547, 827
N.E.2d 329, 2005-Ohio-2188. Mortgages 481
Commercial sublease's renewal provision which stated that lease could be renewed “for a rate not to exceed two-hundred fifty
dollars from the end of the first year lease term” referred to the increase in the rent rather than the overall rent, and thus
sublessee breached sublease by paying $250 in rent; original rent began at $1,050.00 per month, and lease renewal provision
also stated that lease amount would increase in $50 increments every six months and would not exceed $1250 for the first
three years. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 07-26-2004) No. 03CA072, 2004-Ohio-
3965, 2004 WL 1688567, Unreported, entered nunc pro tunc 2004-Ohio-4815, 2004 WL 3564203, superseded 2004-Ohio-
7272, 2004 WL 3563912. Landlord And Tenant 88(2)
Lease amendment was supported by consideration, where amendment discharged obligations of landlord and tenant under
prior lease. Showe Management Corp. v. Kerr (Ohio App. 8 Dist., Cuyahoga, 05-20-2004) No. 83406, 2004-Ohio-2557, 2004
WL 1118819, Unreported. Landlord And Tenant 33
Equitable subrogation did not apply to allow mortgagee, whose predecessor-in-interest loaned funds to mortgagors to satisfy
first mortgage, to have first lien against mortgagors' property in foreclosure action brought by secured lender, which held
mortgage that was recorded after first mortgage but before mortgage held by mortgagee; mortgagee was aware of secured
lender's lien but failed to ensure that subordination agreement was executed prior to closing. Keybank Natl. Assn. v. GMAC
Mtge. Corp. (Ohio App. 10 Dist., Franklin, 12-11-2003) No. 02AP-1293, 2003-Ohio-6651, 2003 WL 22927344, Unreported.
Mortgages 159
Land purchaser did not prove that he was in possession of property of which he claimed ownership, and thus purchaser
lacked standing to bring quiet title action against vendors. Holstein v. Crescent Communities, Inc. (Ohio App. 10 Dist.,
Franklin, 09-09-2003) No. 02AP-1241, 2003-Ohio-4760, 2003 WL 22077778, Unreported. Quieting Title 12(1)
Trial court had no authority to modify size of “drive easement” as a remedy for dominant tenement owner's misuse of the
easement, where the easement was created by a deed of conveyance, and the easement's dimensions were clearly established
by the deed of conveyance. Cleveland v. Clifford (Ohio App. 9 Dist., Lorain, 03-19-2003) No. 02CA008071, 2003-Ohio-
1290, 2003 WL 1339142, Unreported. Easements 61(10)
Dominant tenement owner's misuse of “drive easement” in failing to prevent the patrons of his restaurant from parking on the
easement did not extinguish the easement, even though dominant owner could have implemented several measures to prevent
the misuse of the easement; record did not show that dominant owner had overburdened the easement or misused the
easement to the point that it should be extinguished. Cleveland v. Clifford (Ohio App. 9 Dist., Lorain, 03-19-2003) No.
02CA008071, 2003-Ohio-1290, 2003 WL 1339142, Unreported. Easements 31
An owner of land is not liable under a deed to indemnify a subsequent owner for the assessment on a road constructed by the
city given the evidence adduced at trial regarding the individual intent of the parties and negotiations between the parties
prior to the deed. Aldi, Inc. (Ohio) v. Venture One (Ohio App. 10 Dist., Franklin, 09-05-1995) No. 95APE03-298, 1995 WL
527763, Unreported.
2. ---- Invalid or defective; part performance, leases
An imperfectly executed lease may operate to create an equitable estate in the lessee, if it be plainly shown that the
instrument was intended as a lease and was accepted and treated as such by the lessee. (See also Williams v Sprigg, 6 OS 585
(1856); Holden v Belmont, 32 OS 585 (1877); Lithograph Bldg Co v Watt, 96 OS 74, 117 NE 25 (1917); Allegheny Oil Co v
Snyder, 106 F 764 (6th Cir 1900); Schloss v Brown, 13 App 294, 32 OCA 251 (1920).) Foster's Lessee v. Dennison (Ohio
1839) 9 Ohio 121.
In equity, a lessee of real estate in actual possession thereof, under a defectively executed lease for a term of three years, with
the privilege of five years additional, and a lessee in actual possession of real estate under a properly executed but unrecorded
lease for a term of three years, with the privilege of seven years additional, are entitled to hold possession of said real estate
for the full terms of the leases against all who acquire an interest therein, although the latter did not have actual notice of the
occupancy of such lessees. Parsons v. Weinstein (Lorain 1924) 19 Ohio App. 521, 2 Ohio Law Abs. 648.
A lease of real property properly signed by both parties, but acknowledged by the lessee only, operates to create an equitable
estate in the lessee, and a purchaser of such realty who at the time of the purchase is aware of the possession of such premises
by the lessee acquires the ownership from the vendor subject to the equitable rights of the lessee in possession. Schloss v.
Brown (Ohio App. 1 Dist. 1920) 13 Ohio App. 294, 32 Ohio C.A. 251.
Trial court did not err in adopting magistrate's decision, in action by landlord against apartment tenant for damages including
lost rent arising from tenant's termination of lease, that lease was a perpetual lease subject to statute of conveyances and that
invalid execution of lease created a month-to-month tenancy; trial court considered pertinent evidence presented at hearing
before magistrate and properly analyzed controlling case law. Haught v. Geissinger (Ohio App. 12 Dist., 01-12-2009) No.
CA2008-03-010, 2009 -Ohio- 98, 2009 WL 57620, Unreported. Justices of the Peace 187
Acts of lessees in reliance on 15-year barn lease did not change their position to their detriment and make it impossible or
impractical to place the parties in status quo, and thus doctrine of part performance did not remove lease from operation of
section of Statute of Conveyances requiring that, in order to be valid, lease had to be acknowledged before a notary; even
though lessees were required under lease to maintain barn and pasture, lessees did not make any permanent improvements to
the property. Burger v. Buck (Ohio App. 11 Dist., 11-21-2008) No. 2008-P-0041, 2008 -Ohio- 6061, 2008 WL 4964670,
Unreported. Landlord and Tenant 25
Allegations of lessees, that they could not place their horses in a different location without “severe prejudice,” were
insufficient to show, in opposition to motion for summary judgment, that lessees had taken acts in reliance on 15-year barn
lease that had changed their position to their detriment and made it impossible or impractical to place the parties in status
quo, so as to remove lease, under doctrine of part performance, from operation of section of Statute of Conveyances requiring
that, in order to be valid, lease had to be acknowledged before a notary. Burger v. Buck (Ohio App. 11 Dist., 11-21-2008)
No. 2008-P-0041, 2008 -Ohio- 6061, 2008 WL 4964670, Unreported. Landlord and Tenant 25
Conversion of defectively executed commercial lease agreement to a month-to-month tenancy extinguished tenant's renewal
option; to allow a month-to-month tenancy, or any lease agreement for less than three years, to provide for a renewal option
past the years would defeat the purposes of statute of conveyances. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5
Dist., Licking, 12-15-2004) No. 03CA072, 2004-Ohio-7272, 2004 WL 3563912, Unreported. Landlord And Tenant 83(2)
Commercial lease that was signed by both landlord and tenant, but was not witnessed or acknowledged, as required by statute
of conveyances, was improperly executed and invalid. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking,
12-15-2004) No. 03CA072, 2004-Ohio-7272, 2004 WL 3563912, Unreported. Landlord And Tenant 25
Commercial lease between lessor and lessee was not void as a result of lessee's decision to sell business, although lease
provided that “lease shall become null and void if lessee decides to sell the business,” where rest of lease provision stated that
purchaser would have first option to sign new lease, which indicated that lease provision contemplated a completed sale, and
lessee did not complete sale. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 07-26-2004) No. 03CA072,
2004-Ohio-3965, 2004 WL 1688567, Unreported, entered nunc pro tunc 2004-Ohio-4815, 2004 WL 3564203, superseded
2004-Ohio-7272, 2004 WL 3563912. Landlord And Tenant 47
Commercial sublease which was not witnessed or acknowledged as required by statute of conveyances was invalid, although
it was signed by both commercial lessee and sublessee. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking,
07-26-2004) No. 03CA072, 2004-Ohio-3965, 2004 WL 1688567, Unreported, entered nunc pro tunc 2004-Ohio-4815, 2004
WL 3564203, superseded 2004-Ohio-7272, 2004 WL 3563912. Acknowledgment 6(2)
Lessee was not entitled to exercise option to renew commercial lease for five years, where lease was invalid due to failure to
comply with statute of conveyances, and agreement between lessee and lessor was therefore month-to-month tenancy which
was terminable by either party upon 30 days notice. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 07-
26-2004) No. 03CA072, 2004-Ohio-3965, 2004 WL 1688567, Unreported, entered nunc pro tunc 2004-Ohio-4815, 2004 WL
3564203, superseded 2004-Ohio-7272, 2004 WL 3563912. Landlord And Tenant 86(1)
Commercial lessee breached lease by failing to provide lessor with a copy of his insurance certificate in compliance with
lease provision which stated that “a copy of lessee's insurance certificate must be provided” to lessor, although lessee claimed
that breach was caused by sublessee; sublease did not require sublessee to provide insurance certificate to either lessee or
lessor, and prime lease provided that lessee assumed responsibility for sublessee's failure to comply with lease. Kilcoyne
Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 07-26-2004) No. 03CA072, 2004-Ohio-3965, 2004 WL 1688567,
Unreported, entered nunc pro tunc 2004-Ohio-4815, 2004 WL 3564203, superseded 2004-Ohio-7272, 2004 WL 3563912.
Landlord And Tenant 80(3); Landlord And Tenant 156
Equitable doctrine of part performance did not remove invalid commercial lease from the statute of conveyances, despite
lessee's act of subleasing premises, where sublease was a benefit rather than a detriment, all improvements and substantial
alterations which lessee made to the property were performed under prior lease with prior landlord, and lease provided that
lessee could remove his improvements upon expiration of the lease. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5
Dist., Licking, 07-26-2004) No. 03CA072, 2004-Ohio-3965, 2004 WL 1688567, Unreported, entered nunc pro tunc 2004-
Ohio-4815, 2004 WL 3564203, superseded 2004-Ohio-7272, 2004 WL 3563912. Acknowledgment 6(2)
Month-to-month tenancy was created as a result of invalid commercial lease, as rent was to be paid in monthly installments
under invalid lease. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 07-26-2004) No. 03CA072, 2004-
Ohio-3965, 2004 WL 1688567, Unreported, entered nunc pro tunc 2004-Ohio-4815, 2004 WL 3564203, superseded 2004-
Ohio-7272, 2004 WL 3563912. Landlord And Tenant 115(1)
Lease agreement, providing that wife was acting as agent for her husband as landlord and that she accepted agreement as
husband's agent and spouse, was void for lack of mutual assent as to offer and acceptance, where wife subsequently
discovered that she was co-owner of the property at time of lease, and both tenant and wife believed that husband was sole
owner at time of lease. Robert's Auto Center, Inc. v. Helmick (Ohio App. 9 Dist., Summit, 02-12-2003) No. 21073, 2003-
Ohio-640, 2003 WL 294354, Unreported, appeal not allowed 99 Ohio St.3d 1437, 789 N.E.2d 1118, 2003-Ohio-2902.
Landlord And Tenant 27
Lessee was not entitled to exercise option to renew commercial lease for five years, where lease was invalid due to failure to
comply with statute of conveyances, and agreement between lessee and lessor was therefore month-to-month tenancy which
was terminable by either party upon 30 days notice. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 08-
30-2004) No. 03CA072, 2004-Ohio-4815, 2004 WL 3564203, Unreported, superseded 2004-Ohio-7272, 2004 WL 3563912.
Landlord And Tenant 86(1)
Equitable doctrine of part performance did not remove invalid commercial lease from the statute of conveyances, despite
lessee's act of subleasing premises, where sublease was a benefit rather than a detriment, all improvements and substantial
alterations which lessee made to the property were performed under prior lease with prior landlord, and lease provided that
lessee could remove his improvements upon expiration of the lease. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5
Dist., Licking, 08-30-2004) No. 03CA072, 2004-Ohio-4815, 2004 WL 3564203, Unreported, superseded 2004-Ohio-7272,
2004 WL 3563912. Acknowledgment 6(2)
Month-to-month tenancy was created as a result of invalid commercial lease, as rent was to be paid in monthly installments
under invalid lease. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 08-30-2004) No. 03CA072, 2004-
Ohio-4815, 2004 WL 3564203, Unreported, superseded 2004-Ohio-7272, 2004 WL 3563912. Landlord And Tenant 115(1)
Commercial lease which was not witnessed or acknowledged as required by statute of conveyances was invalid, although it
was signed by both commercial lessor and lessee. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 08-30-
2004) No. 03CA072, 2004-Ohio-4815, 2004 WL 3564203, Unreported, superseded 2004-Ohio-7272, 2004 WL 3563912.
Acknowledgment 6(2)
Part performance of a lease defectively executed under the statute of conveyances removes that agreement from the operation
of the statute where (1) a lessee sandwich shop expends considerable time and money to remodel the premises so that it
would look like the company standard and the remodeling and addition of a sign and parking lot are provided for in the lease,
(2) lessee's position is changed to its detriment if the lease is not followed because it has gone to the expense of starting its
shop and maintaining it with the understanding that it could remain at that location for a maximum of twenty years under the
lease, and (3) the lessee's acts and lessor's acceptance of the benefit of the contract make it impossible to return the parties to
the positions they would have held if the lease had never occurred. Sigg v. Subway Sandwich Shops, Inc. (Ohio App. 3 Dist.,
Defiance, 07-23-1997) No. 4-97-12, 1997 WL 410725, Unreported.
A defectively executed lease may not be specifically enforced as a contract to lease because to do so would be to do
indirectly what is prohibited by statute, that is, create a perpetual leasehold estate by a defectively executed instrument.
Adams v Connelly, 10 Abs 121 (App, Hamilton 1930).
A defectively executed lease covering real estate and subsequently transferred to a third party with notice of the purported
lease and its defective character may be enforced against the transferee by the prior intended lessee.
Formal requirements of statute of frauds were satisfied by partial performance of lease agreements and such performance was
referable to the lease agreements and not to original purchase agreement, where original purchase agreement was abandoned,
where lease agreements were executed by vendors to lease office space in building they were selling, where note obligating
purchasers to pay for property was executed following lease agreements, where lease agreements were inducement for
purchasers to complete purchase, and where vendors made rent payments in accordance with terms of lease agreements. Snell
v. Salem Ave. Assoc. (Ohio App. 2 Dist., 05-10-1996) 111 Ohio App.3d 23, 675 N.E.2d 555. Frauds, Statute Of 129(5);
Frauds, Statute Of 129(12)
Commercial lessee's alleged miscalculation in determining rent, by allocating half of its total minimum rent against annual
percentage rent, was mistake of law, not mistake of fact; thus, lessee could not recover alleged overpayments made under this
continuing course of conduct. Consol. Mgt., Inc. v. Handee Marts, Inc. (Ohio App. 8 Dist., 02-07-1996) 109 Ohio App.3d
185, 671 N.E.2d 1304. Landlord And Tenant 200.2
Court properly used rule of practical construction to determine construction parties themselves gave to commercial leasing
agreement, where parties had entered into course of conduct more than ten years earlier, and each party claimed entitlement
to funds arising out of that conduct; consequently, conclusion that lessee owed additional percentage rent based on prior
course of conduct was proper. Consol. Mgt., Inc. v. Handee Marts, Inc. (Ohio App. 8 Dist., 02-07-1996) 109 Ohio App.3d
185, 671 N.E.2d 1304. Landlord And Tenant 200.2
Trial court's finding that lessee owed additional percentage rent under commercial lease was not against manifest weight of
evidence, since finding was supported by credible, competent evidence, including lease documents which were part of record
and parties' course of conduct, which included method by which parties themselves calculated rent. Consol. Mgt., Inc. v.
Handee Marts, Inc. (Ohio App. 8 Dist., 02-07-1996) 109 Ohio App.3d 185, 671 N.E.2d 1304. Landlord And Tenant 231(8)
A lease executed defectively under the statute of conveyances, RC 5301.01, can be removed from the statute by part
performance by unequivocal acts by the party relying on the agreement if these acts are exclusively referable to the
agreement, change the party's position to his detriment, and make it impossible to place the parties in status quo. Loveland
Properties v. Ten Jays, Inc. (Hamilton 1988) 57 Ohio App.3d 79, 567 N.E.2d 270. Landlord And Tenant 25
The doctrine of part performance is applicable to both RC 1335.04 and RC 5301.01. Cuvier Press Club v. Fourth & Race St.
Associates, Ltd. (Hamilton 1981) 1 Ohio App.3d 30, 439 N.E.2d 443, 1 O.B.R. 150.
A properly recorded lease which is regular on its face but subject to latent defect that one of two attesting witnesses did not
actually attend or see act of signing is validated by subsequent deed from lessor to a third party which recites that it is subject
to recorded lease and that grantor assigns all his right, title and interest in and to such lease to third party grantee. Mossgrove
v. All States Oil & Producing Co. (Stark 1970) 24 Ohio App.2d 128, 265 N.E.2d 299, 53 O.O.2d 339. Estoppel 32(1); Mines
And Minerals 58
Where the lessee and lessor of a storeroom substitute a new five-year lease agreement, with an increased rent, for a ten-year
lease on which four years remain, but which new lease is defectively acknowledged and executed, and the lessor tears out a
wall enlarging the leased premises and installs new flooring, and the lessee occupies the premises under the new lease at the
increased rent for over three years of the five-year lease period and then vacates the premises, there is sufficient part
performance to take the agreement out of the operation of RC 5301.01. Menke v. Tessel (Hamilton 1969) 18 Ohio App.2d
121, 247 N.E.2d 334, 47 O.O.2d 184. Landlord And Tenant 32
Where a lease does not contain an option or other provision for the renewal or extension of the lease, the grant of an
additional term of five years is, for the purposes of RC 5301.01, an independent and separate transaction, and failure to
comply with the formalities of execution required invalidates the attempted grant. 67 Corp. v. Elias (Franklin 1965) 3 Ohio
App.2d 411, 210 N.E.2d 734, 32 O.O.2d 540.
Part performance to be sufficient to remove an agreement from the operation of the statute of conveyances must consist of
unequivocal acts by the party relying upon the agreement, which are exclusively referable to the agreement and which have
changed his position to his detriment and make it impossible or impractical to place the parties in status quo. Delfino v. Paul
Davies Chevrolet, Inc. (Ohio 1965) 2 Ohio St.2d 282, 209 N.E.2d 194, 31 O.O.2d 557. Deeds 3
RC 2719.01 does not validate a lease which does not comply with the mandatory requirements of the statute of conveyances
as to execution. Delfino v. Paul Davies Chevrolet, Inc. (Ohio 1965) 2 Ohio St.2d 282, 209 N.E.2d 194, 31 O.O.2d 557.
A lease for a period of twelve months, with a right to perpetual renewal, which is not attested and acknowledged, is void, but
a lessee in possession of premises under a perpetual year-to-year lease which is void for want of attestation and
acknowledgment, is nevertheless, a tenant from year to year at the will of the lessor and subject to all the provisions of the
lease excepting duration. Frank v. Flynn (Cuyahoga 1964) 120 Ohio App. 361, 197 N.E.2d 657, 95 Ohio Law Abs. 33, 29
O.O.2d 205.
At law, entry and payment of rent under a defectively executed lease creates a tenancy from year to year, or from month to
month, upon the terms of such lease, except as to duration; but in equity a lessee in possession paying rent and having made
expenditures for improvements under a defectively executed lease is entitled to hold possession upon the terms of such lease
for its full term. Walter C. Pressing Co. v. Hogan (Huron 1954) 99 Ohio App. 319, 133 N.E.2d 419, 59 O.O. 107.
A defectively executed lease for the duration of the war plus six months which included an option to purchase will be treated
in equity as a contract to make a lease and is taken out of the operation of the statute by part performance. Reformation is not
a prerequisite to equitable relief and the lessee has a right to exercise the option. Grundstein v. Suburban Motor Freight
(Franklin 1951) 92 Ohio App. 181, 107 N.E.2d 366, 62 Ohio Law Abs. 251, 62 Ohio Law Abs. 252, 49 O.O. 312.
In action to cancel lease for fraud and deceit, court's equity powers are invoked; it may retain the case in order to finally
determine all matters at issue including the invalidity of the lease on legal grounds based on failure to attest and
acknowledge. Gelman v. Holland Furnace Co. (Lorain 1948) 92 N.E.2d 704, 59 Ohio Law Abs. 539.
Possession taken under a lease which is defective because not executed in conformity to this section, does not create a
leasehold estate according to the terms of the document, but possession and payment of rent take it out of the operation of the
statute of frauds and create a tenancy from year to year. However, such defectively executed lease may be evidence of a
contract to make a lease and create rights in favor of the lessor for damages for breach of contract or specific performance.
RKO Distributing Corp. v. Film Center Realty Co. (Hamilton 1936) 53 Ohio App. 438, 5 N.E.2d 927, 22 Ohio Law Abs.
402, 6 O.O. 512.
Omission of description of premises from lease held not to constitute “defectively executed lease” so as to create tenancy
from month to month. Baxter Laundries v. Lucas (Stark 1932) 43 Ohio App. 518, 183 N.E. 538, 13 Ohio Law Abs. 441.
Frauds, Statute Of 123(3); Landlord And Tenant 115(1)
Where five-year lease containing renewal clause was defectively executed, in that it had but one witness and was neither
acknowledged before officer nor placed on record, but lessees entered into possession and continued as tenants throughout
entire period and gave required notice as to renewal, they were entitled to specific performance of renewal clause. Pero v.
Miller (Sandusky 1928) 32 Ohio App. 174, 166 N.E. 242, 6 Ohio Law Abs. 731.
Burden is on assignee of lessor to prove lessee's entry on leased premises where no rent had been paid by lessee and assignee
is suing to recover rent under defectively executed lease. Shell Petroleum Corp. v. Jackson (C.C.A.6 (Ohio) 1935) 77 F.2d
340. Landlord And Tenant 231(1)
Entry by a lessee under a lease defectively executed for a term of years at an annual rental creates a tenancy only from year to
year; if at a monthly rental the tenancy created is from month to month. Shell Petroleum Corp. v. Jackson (C.C.A.6 (Ohio)
1935) 77 F.2d 340.
When a lease is found to be invalid because of a violation of RC 5301.01, and the lessee has taken possession and pays rent,
the court must determine if the lease is removed from the statute of conveyances, RC 5301.01, and an implied lease created
by partial performance, and if it is not, what the terms of the resulting tenancy are. Ruben v. S.M. & N. Corp. (Cuyahoga
1993) 83 Ohio App.3d 80, 613 N.E.2d 1101.
A lease which, as a result of clerical error, misnames the grantor, is invalid under RC 5301.01, does not create the term of the
leasehold, and may not be reformed. Ruben v. S.M. & N. Corp. (Cuyahoga 1993) 83 Ohio App.3d 80, 613 N.E.2d 1101.
A lease may be reformed to carry out the intention of the parties under the provisions of GC 12210 and 12211 (RC 2719.01
and RC 2719.02), in case the provisions of GC 8510 and 8516 (RC 5301.01 and RC 5301.06) regarding acknowledgments in
this and other states are not complied with. S. S. Kresge Co v Butte, 24 Abs 339 (CP, Jefferson 1937), affirmed by 136 OS
85, 23 NE(2d) 944 (1939).
3. ---- Guarantee of lessee's performance, leases
Power of attorney conveying no present interest is void. Lawrence's Lessee v. McArter (Ohio 1840) 10 Ohio 37. Infants 5;
Principal And Agent 4
Subsequent lease was a new lease, not an extension or renewal of prior lease, and thus guarantors of prior lease could not be
liable for tenants' obligations of subsequent lease; subsequent lease contained no provision stating that it was a renewal or
extension, prior lease stated that unless a tenant executed a “new lease” the tenant would be considered a holdover tenant on a
month-to-month tenancy at a significantly increased rent, and subsequent lease included a rent increase and four new tenants
who were not parties to prior lease. Beatley v. Izzo (Ohio App. 10 Dist., 06-30-2009) No. 09AP-50, 2009 -Ohio- 3245, 2009
WL 1910960, Unreported. Guaranty 36(8); Guaranty 53(1); Landlord and Tenant 88(1)
Guaranty of tenants' obligations under prior lease, guaranteeing payment of rent and any damage to leased premises for full
term of lease and “any extensions or renewals of the lease term,” did not create a continuing or unlimited guaranty, so as to
impose liability on guarantors for tenants' obligations under subsequent lease. Beatley v. Izzo (Ohio App. 10 Dist., 06-30-
2009) No. 09AP-50, 2009 -Ohio- 3245, 2009 WL 1910960, Unreported. Guaranty 38(1)
Tenants' attorney-in-fact, who signed residential lease in his own name over the words “Signature of Resident/or Resident's
Sponsor,” signed lease in representative capacity and thus did not personally guarantee satisfaction of tenants' financial
obligation; there was no indication in lease that landlord intended attorney-in-fact to be personally liable for tenants' rent
obligation and no indication that attorney-in-fact intended to accept that responsibility, and lease did not indicate that
“sponsor” was responsible party. Kingston Residence of Perrysburg v. Borgelt (Ohio App. 6 Dist., 06-30-2009) No. WD-08-
066, 2009 -Ohio- 3212, 2009 WL 1874652, Unreported. Guaranty 30; Landlord and Tenant 207(2); Principal and Agent
126(5)
Shopping center owner's reliance on retailer's oral promise to lease site at center once retailer's real estate committee
approved deal between owner and retailer to enter into commercial lease was not reasonable, as necessary for owner to
establish claim for promissory estoppel against retailer; all letters of intent and draft lease agreements clearly and expressly
articulated both parties' desire that no promises would be binding unless and until the promises and terms of lease agreement
were reduced to writing and incorporated into a signed agreement, which never occurred, owner's principals and chief
negotiator understood that no deal existed without a written lease, and parties continued negotiations for months. Mansfield
Square, Ltd. v. Big Lots, Inc. (Ohio App. 10 Dist., 12-09-2008) No. 08AP-387, 2008 -Ohio- 6422, 2008 WL 5159930,
Unreported. Estoppel 85
Medical records from 1985 through 1997 were too far removed in time to be relevant to father's competency to execute a
deed in 1973, and thus, were inadmissible in son's action to quiet title. Rutledge v. Wallace (Ohio App. 7 Dist., Carroll, 10-
07-2002) No. 02AP0770, 2002-Ohio-5372, 2002 WL 31243511, Unreported, appeal not allowed 98 Ohio St.3d 1463, 783
N.E.2d 521, 2003-Ohio-644. Deeds 203
A personal guaranty by a third party that a lessee will perform in full must be in writing and signed by the party to be charged
to satisfy the Statute of Frauds, RC 1335.05, as a promise to answer for the debt, default, or miscarriage of another but the
guaranty need not be executed in compliance with RC 5301.01 since it does not constitute an “interest in real property.”
Loveland Properties v. Ten Jays, Inc. (Hamilton 1988) 57 Ohio App.3d 79, 567 N.E.2d 270. Frauds, Statute Of 17; Frauds,
Statute Of 56(6)
4. ---- Recording, leases
The person claiming under a lease must have it recorded unless he is in actual and open possession of the land. Langmede v.
Weaver (Ohio 1901) 65 Ohio St. 17, 46 W.L.B. 40, 60 N.E. 992.
An assignment of interest in an oil and gas lease recorded after the recording of a different assignment of such interest is
ineffective, notwithstanding the latter-recorded assignment was made first. Bucci v Dever, No. CA-7509 (5th Dist Ct App,
Stark, 11-7-88).
A purchaser of land in actual possession of a third party under a defective and unrecorded lease is chargeable with notice of
any equitable right of said third party and stands in the shoes of his grantor, the recording statutes to the contrary
notwithstanding, and such third party may enforce the terms of said defective lease against said purchaser. Soltesz v. Carter
(Ohio Com.Pl. 1949) 87 N.E.2d 599, 55 Ohio Law Abs. 117. Vendor And Purchaser 232(9)
By the rule of Crawford & Murray v Wick, 18 05 190 (1868), a lease to mine coal is an “interest in real property”; under RC
5301.25(A) a transfer of an interest in real property is fraudulent so far as it relates to a subsequent bona fide purchaser until
the interest is recorded or filed for record in the recorder's office in the county where the land lies. Matter of K & R Min., Inc.
(Bkrtcy.N.D.Ohio 1988) 103 B.R. 136.
The county recorder may not refuse to accept and to record an oil and gas lease which fails to contain the specific reference
required by RC 5301.011. 1964 OAG 1053.
5. ---- Delivery, deeds
Land vendor's testimony that he did not intend to transfer title of land until he received full purchase price did not rebut
presumption that he intended to transfer title when he presented deed to recorder, and thus deed was delivered, even though
deed was not physically delivered to purchaser, where vendor caused deed to be prepared, signed deed, recorded deed, filed
conveyance form, and paid conveyance fee. Behymer v. Six (Ohio App. 5 Dist., Morgan, 11-20-2002) No. CA02-006, 2002-
Ohio-6403, 2002 WL 31647813, Unreported. Deeds 56(4); Deeds 59(4)
Where a grantor executes deeds and delivers them to the cashier of a bank with oral instructions to deliver the papers upon
the grantor's death to the executor of his will and after the grantor's death the deeds are delivered to the executor who delivers
them to the grantees, the grantor has not reserved control, dominion, or power of revocation over the real estate and there has
been a valid and legal delivery of the deeds by the grantor to the grantees. Patrick v Parrott, 92 OS 184, 110 NE 725 (1915).
By the acceptance of a deed, and the entering into the possession of the premises conveyed thereby, the grantee bound itself
to the performance of each and every condition written therein, and it cannot later be permitted to retain the benefits thereof
and reject the burdens imposed. Miller v. Lake Shore & M.S. Ry. Co. (Ohio 1913) 88 Ohio St. 499, 103 N.E. 374, 11 Ohio
Law Rep. 275.
Where an owner of land under a verbal agreement for its sale places the purchaser in possession and executes a deed and
places it in the hands of a third person, with directions to deliver it upon the purchase money being paid or secured by
mortgage, and the grantee induces the holder of the deed to deliver it to him that he may exhibit it as evidence of title, and the
grantee does so to one ignorant of the facts, and who in good faith makes him a loan secured by mortgage on the property, the
grantor is estopped from setting up his claim to the land or a lien on it for purchase money against such innocent mortgagee.
Schurtz v Colvin, 55 OS 274, 45 NE 527 (1896).
Where husband and wife, being in possession of a homestead the title to which is in the wife, join in a deed of gift intending
that it shall not be delivered until after the decease of both, and the wife attempts to deliver such deed during the life of the
husband without his knowledge and consent, the right of the husband in the homestead will not be affected by the deed.
Meeks v. Stillwell (Ohio 1896) 54 Ohio St. 541, 35 W.L.B. 349, 44 N.E. 267. Deeds 57; Homestead 118(4)
Deed delivered to third person to be delivered at his death, but reserving a right to recall same, does not constitute delivery
and is invalid as a deed. Williams v. Schatz (Ohio 1884) 42 Ohio St. 47.
Deed delivered to a third person to be delivered to grantee at death of grantor and so delivered, passes title as of the date of
first delivery. Ball v. Foreman (Ohio 1881) 37 Ohio St. 132. Deeds 108; Deposits And Escrows 18.1
Where grantor delivers deed to third person to be delivered at grantee's death, it is grantor's deed presently and third person
becomes trustee of grantee. Dukes v. Spangler (Ohio 1878) 35 Ohio St. 119.
Delivery may be made by words and acts, or either, so that there is an intent to vest grantee with both instrument and land.
Dukes v. Spangler (Ohio 1878) 35 Ohio St. 119.
Deed of husband to wife was in 1871 delivered in escrow to be held until husband's death and was then delivered to wife,
void in law though enforceable in equity. Crooks v. Crooks (Ohio 1878) 34 Ohio St. 610.
Specific performance may be enforced by grantor where deed delivered to third person to be delivered on payment. Farley v.
Palmer (Ohio 1870) 20 Ohio St. 223.
Deed delivered on conditions estops vendor from asserting title against subsequent mortgagee of vendee. Resor v. Ohio &
Mississippi R. Co. (Ohio 1866) 17 Ohio St. 139.
Delivery by releasor to known agent of releasee passes title, though accompanied by conditions in respect to its operation
after delivery. Cincinnati, W. & Z.R. Co. v. Iliff (Ohio 1862) 13 Ohio St. 235.
Mere delivery of material possession of deed is not necessarily a delivery. Cincinnati, W. & Z.R. Co. v. Iliff (Ohio 1862) 13
Ohio St. 235.
Deed executed and acknowledged by husband and wife and delivered by husband without wife's knowledge, passes title.
Baldwin v. Snowden (Ohio 1860) 11 Ohio St. 203, 78 Am.Dec. 303.
Where person corruptly acts as agent for both, grantor may make such person his agent to hold deed in escrow and return it to
him in case of nonperformance of grantee. Baldwin v. Snowden (Ohio 1860) 11 Ohio St. 203, 78 Am.Dec. 303.
The delivery of a deed of trust by the grantor to the county recorder for record, for the grantees and as their deed, is sufficient
delivery, where the grantees, before the execution of the deed, had agreed to accept. Hoffman, Burneston & Co. v. Mackall
(Ohio 1855) 5 Ohio St. 124, 64 Am.Dec. 637. Debtor And Creditor 2
Where deed delivered in escrow on condition and before condition performed is delivered to grantee, it does not pass title.
Ogden v. Ogden (Ohio 1854) 4 Ohio St. 182.
Record is prima facie evidence of delivery, but grantor's possession of such deed after recording is pregnant circumstance to
show that delivery was not absolute. Mitchell's Lessee v. Ryan (Ohio 1854) 3 Ohio St. 377.
Acceptance by grantee is necessary to constitute delivery, but where grant is beneficial, acceptance is presumed. Mitchell's
Lessee v. Ryan (Ohio 1854) 3 Ohio St. 377.
Delivery in escrow must be to third person for delivery to grantee on condition; vests title at once whether condition
performed or not. Baldwin v. President, etc., Bank of Massilon (Ohio 1853) 1 Ohio St. 141.
Deed delivered and accepted by grantee on condition that title should prove good passed land though title not good and deed
returned. Hammell v. Hammell (Ohio 1850) 19 Ohio 17.
Delivery is necessary to pass title, but if recorded and grantee takes possession it amounts to a delivery. Kemp v. Walker
(Ohio 1847) 16 Ohio 118.
Deed may be valid and pass title though never in the hands of grantee, and if delivered in escrow will take effect immediately
on performance of the condition. Shirley's Lessee v. Ayres (Ohio 1846) 14 Ohio 307, 45 Am.Dec. 546.
Delivery may be shown by declarations of grantor. Tipton's Lessee v. Ross (Ohio 1840) 10 Ohio 273.
Whether a deed was delivered in fact or only in escrow, is question of fact. Lloyd's Lessee v. Giddings (Ohio 1836) 7 Ohio
50, PT. II.
Where trustee has agreed to accept trust, a delivery of trust deed to recorder to be put on record is sufficient delivery. Steele
v. Lowry (Ohio 1829) 4 Ohio 72, 19 Am.Dec. 581.
Delivery of deed vests the seizin, completes the title, and puts grantee in same situation as if there had been livery of seizin.
Holt's Heirs' Lessee v. Hemphill's Heirs (Ohio 1827) 3 Ohio 232.
Deeds take effect from time of delivery where third persons are concerned. Hood v. Brown (Ohio 1826) 2 Ohio 266.
The redelivery of a deed does not reconvey title. Starr v. Starr (Ohio 1824) 1 Ohio 321.
It is indispensable to the validity of a grant of a deed that the grantee be capable of receiving it and both the grantor and
grantee be persons or entities at the time of the grant. Thomas v. City of Columbus (Franklin 1987) 39 Ohio App.3d 53, 528
N.E.2d 1274.
Filing and recording of deed is prima facie evidence of delivery, in absence of any showing of fraud. Frank v. Barnes (Lucas
1931) 40 Ohio App. 328, 178 N.E. 419, 10 Ohio Law Abs. 460. Deeds 208(4)
A grantor who advised one of the grantees that the deed would be delivered as soon as she was advised as to whom the
transfer should be made has not refused to deliver the deed. Elliott v. Garringer (Cuyahoga 1927) 27 Ohio App. 362, 161
N.E. 287, 6 Ohio Law Abs. 419.
Delivery of a deed to the county recorder for record and the recording of it do not constitute delivery to the grantee, where the
grantor did not intend delivery to the grantee and the grantee was unaware of the delivery and did not accept it; therefore, title
did not vest in the grantee, and the deed may be cancelled and the record cleared. Lemley v. Shafer (Ohio App. 4 Dist. 1921)
14 Ohio App. 362, 32 Ohio C.A. 177.
Acceptance of deed does not prohibit action by purchaser against vendor for waste after deed has been accepted; once waste
has occurred, vendor is immediately liable to purchaser who has equitable title, as action is separate from transfer of title.
West v. P.D.G. Dev., Inc. (Ohio Mun., 11-17-1994) 68 Ohio Misc.2d 25, 646 N.E.2d 920. Vendor And Purchaser 203
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. Briggs v. Jeffers (Ohio Com.Pl. 1965) 7 Ohio Misc. 44, 215 N.E.2d 622, 36
O.O.2d 36. Deeds 82
Evidence that deeds conveying property to plaintiff were in the possession of a third person is not sufficient to overcome the
presumption of intent to transfer title that arises from the execution and recording of such deeds by the owner of the property.
Weinlein v. Bedford (Ohio Com.Pl. 1955) 138 N.E.2d 173, 75 Ohio Law Abs. 439, affirmed 138 N.E.2d 178, 73 Ohio Law
Abs. 378.
Under Ohio law, general rule is that a contract for the purchase of real estate is merged into the deed conveying the property,
and once the deed is delivered and accepted without qualification pursuant to agreement, no cause of action on prior
agreement exists. Dartron Corp. v. Uniroyal Chemical Co., Inc. (N.D.Ohio, 02-22-1996) 917 F.Supp. 1173. Deeds 94
Under Ohio law, affirmative rejection of grant may be accomplished if grantee, upon learning of transfer, immediately
executes a deed which transfers back to grantor the property originally conveyed. In re Hayes (Bkrtcy.N.D.Ohio, 12-02-
2002) 293 B.R. 420. Deeds 63.1
Whether grantee has accepted deed, as required under Ohio law for deed to result in valid transfer of title, depends on
individual facts of each case; however, where transfer is plainly beneficial to grantee, acceptance will be presumed in absence
of proof to the contrary. In re Hayes (Bkrtcy.N.D.Ohio, 12-02-2002) 293 B.R. 420. Deeds 64; Deeds 194(4)
Under Ohio law, person cannot be compelled to take conveyance against his or her consent, and grantee's acceptance of deed
is prerequisite to valid transfer of title. In re Hayes (Bkrtcy.N.D.Ohio, 12-02-2002) 293 B.R. 420. Deeds 64
Under Ohio law, deed will pass title to property only if deed is (1) validly delivered by grantor, and (2) then accepted by
grantee. In re Hayes (Bkrtcy.N.D.Ohio, 12-02-2002) 293 B.R. 420. Deeds 54; Deeds 64
6. ---- Acknowledgment: certification; witnesses, deeds
Where officer omits to subscribe his name, deed only vests equitable title with right to have defect cured. Hume v. Dixon
(Ohio 1881) 37 Ohio St. 66.
It is essential to the validity of a conveyance of the wife's estate in lands that the same should be acknowledged before an
officer named therein, and that the certificate of such acknowledgment should show a substantial compliance with all the
requirements of the statute of conveyances. Dengenhart v. Cracraft (Ohio 1881) 36 Ohio St. 549, 6 W.L.B. 156. Husband
And Wife 194
Deed of railroad corporation under seal of same if objected to cannot be given in evidence without proof of its execution.
Walsh v. Barton (Ohio 1873) 24 Ohio St. 28.
The statute providing “for the proof, acknowledgment and recording of deeds and other instruments of writing,” is not
incompatible with the equitable power of a married woman to charge her separate estate. Phillips v. Graves (Ohio 1870) 20
Ohio St. 371, 5 Am.Rep. 675.
Where certificate of acknowledgment is not subscribed by officer, deed passes no title. Hout v. Hout (Ohio 1870) 20 Ohio St.
119.
Officer taking acknowledgment may testify to the mental incapacity of grantor at the time. Truman v. Lore's Lessee (Ohio
1862) 14 Ohio St. 144.
Acknowledgment in the absence of fraud is conclusive of facts therein stated. Baldwin v. Snowden (Ohio 1860) 11 Ohio St.
203, 78 Am.Dec. 303.
Where certificate and official seal are on a separate piece of paper attached to deed by wafer, it is not in compliance with act,
requiring certificate to be on same sheet on which deed is written or printed. Winkler v. Higgins (Ohio 1859) 9 Ohio St. 599.
Certificate on separate piece of paper, attached to deed by wafer under act of January 26, 1844, requiring acknowledgment to
be on same sheet, is void. Winkler v. Higgins (Ohio 1859) 9 Ohio St. 599.
Where a subscribing witness to a deed or other instrument of writing resides beyond the reach of the process of the court, his
handwriting may be proved. Richards v. Skiff (Ohio 1858) 8 Ohio St. 586. Evidence 374(7)
Acknowledgment of husband and wife could be taken on different days under act of February 24, 1820, 2 Chase, 1193.
Williams v. Robson (Ohio 1856) 6 Ohio St. 510.
Where certificate does not state county, but parties to deed are described as of a particular county in body of deed, same is
valid. Beckel v. Petticrew (Ohio 1856) 6 Ohio St. 247.
In partition, under act of 1820, 2 Chase, 1162, sheriff's deed must be sealed and the addition of seal many years after not
sufficient. Merritt's Lessee v. Horne (Ohio 1855) 5 Ohio St. 307, 67 Am.Dec. 298.
Mayor may take acknowledgments of deeds outside of limits of city in which he was elected. Moore v. Moore's Lessee (Ohio
1853) 3 Ohio St. 154. Acknowledgment 19
Deed is valid though clerical error made in dating acknowledgment. Fisher v. Butcher (Ohio 1850) 19 Ohio 406, 53 Am.Dec.
436.
In certifying the acknowledgment of a deed, nothing further is necessary than that the officer taking the acknowledgment
subscribes his name to the certificate, and this provision applies to notaries as well as other officers. Fund Com'rs of
Muskingum Co. v. Glass (Ohio 1848) 17 Ohio 542.
A deed is valid despite the failure of magistrate who took the acknowledgment to affix his seal. Barton's Lessee v. Morris's
Heirs (Ohio 1846) 15 Ohio 408.
Attestation that deed was “sealed and delivered” in presence of subscribing witnesses transferred title. Fosdick's Lessee v.
Risk (Ohio 1846) 15 Ohio 84, 45 Am.Dec. 562. Deeds 47
Acknowledgment not showing by whom made is void. Smith's Lessee v. Hunt (Ohio 1844) 13 Ohio 260, 42 Am.Dec. 201.
Where a deed for land in Ohio was made in the state of Connecticut and acknowledged there, but before an associate judge of
the common pleas of the county in the then territory of Ohio in which the land is located, the acknowledgment is sufficient.
Kinsman's Lessee v. Loomis (Ohio 1842) 11 Ohio 475.
Where acknowledgment taken by an officer unknown to our laws, his authority must be shown. De Segond's Lessee v. Culver
(Ohio 1840) 10 Ohio 188.
Deed under which lands have been held for forty years is good though mayor before whom acknowledged did not affix his
official seal or state his official character. Brown v. Witter (Ohio 1840) 10 Ohio 142.
Where described in body of certificate as an officer whom law authorizes to take, officer need not state authority by which he
acts. Livingston's Lessee v. McDonald (Ohio 1839) 9 Ohio 168.
Acknowledgment is only evidence and constitutes no part of deed. Foster's Lessee v. Dennison (Ohio 1839) 9 Ohio 121.
Grantor may maintain suit for title if no witnesses sign. Patterson's Lessee v. Pease (Ohio 1831) 5 Ohio 190.
Certificate of acknowledgment must contain the substance of everything required by law. Brown v. Farran (Ohio 1827) 3
Ohio 140.
Admissions by a party cannot be made to take the place of a subscribing witness to a deed. Zerby v. Wilson (Ohio 1827) 3
Ohio 42, 17 Am.Dec. 577.
Where subscribing witness cannot be obtained, proof of his handwriting is prima facie evidence. Clark v. Boyd (Ohio 1825) 2
Ohio 56.
Where officer taking acknowledgment fails to state his official character, acknowledgment is void. Johnston's Lessee v.
Haines (Ohio 1825) 2 Ohio 55, 15 Am.Dec. 533.
Since June 1, 1805 two witnesses have been necessary. Courcier v. Graham (Ohio 1824) 1 Ohio 330.
A judge of the United States, authorized to take acknowledgment of deeds, may in any part of the Union take same as to land
in the territory over which his powers extended. Moore's Lessee v. Vance (Ohio 1821) 1 Ohio 1.
Perpetual apartment lease that called for automatic renewal for an additional 12 months and thereafter every 12 months under
the same terms and conditions, but was defectively executed under statute of conveyances because the signatures were not
acknowledged, created an implied month-to-month tenancy based on lease's requirement that tenant pay rent on a monthly
basis. Haught v. Geissinger (Ohio App. 12 Dist., 01-12-2009) No. CA2008-03-010, 2009 -Ohio- 98, 2009 WL 57620,
Unreported. Landlord and Tenant 115(1)
Former husband, as grantee under quitclaim deed signed by former wife in connection with separation agreement, did not
acquire legal title to the property because the deed was not executed in accordance with statutory requirement that a grantor's
signature must be acknowledged before a notary, but he did acquire an equitable interest that was enforceable in contract.
Diversified Internatl. Properties, Inc. v. Lukacs (Ohio App. 5 Dist., 12-05-2008) No. 08CAE030010, 2008 -Ohio- 6443, 2008
WL 5159900, Unreported. Deeds 47; Deeds 49
Law firm that represented former wife with respect to domestic relations issues, and that took a mortgage from former wife to
secure her payment of attorney fees, was not a bona fide purchaser, as would be protected from former husband's
enforcement of his equitable interest in the property, which interest arose from quitclaim deed executed by former wife, in
favor of former husband, before former wife executed the mortgage, which deed did not cause former husband to acquire a
legal interest in the property because the deed was not executed in accordance with statutory requirement that a grantor's
signature must be acknowledged before a notary; law firm had been aware of the issues surrounding the validity of the deed
when it took the mortgage, it had been aware that former wife had signed the deed of her own free will as part of her
separation agreement, and despite its awareness that an equitable interest in law had been created in favor of former husband,
it nevertheless proceeded to take a mortgage interest in the property. Diversified Internatl. Properties, Inc. v. Lukacs (Ohio
App. 5 Dist., 12-05-2008) No. 08CAE030010, 2008 -Ohio- 6443, 2008 WL 5159900, Unreported. Mortgages 154(1)
Trial court decision that executor of decedent's estate, decedent's son, failed to prove that acknowledgement was insufficient
regarding deed of property to decedent's wife was warranted, even if the decedent's conveyance of property to wife was
improperly executed; a defectively executed conveyance would be valid in the absence of fraud, and executor did not plead
fraud or argue undue influence. Taylor v. Kemp (Ohio App. 7 Dist., Belmont, 12-12-2005) No. 05 BE 13, 2005-Ohio-6787,
2005 WL 3489759, Unreported, appeal not allowed 109 Ohio St.3d 1426, 846 N.E.2d 535, 2006-Ohio-1967.
Acknowledgment 6(2)
Genuine issue of material fact as to whether mortgagor owned property at time he mortgaged it precluded entry of summary
judgment for mortgagee in mortgagee's action to foreclose on mortgage; language of deed executed by mortgagor's father
was ambiguous in that it did not clearly identify grantee of deed, and, if mortgagor did not own property, then mortgage was
void. Tagg v. Moody (Ohio App. 4 Dist., Ross, 05-06-2005) No. 04CA2775, 2005-Ohio-2229, 2005 WL 1060566,
Unreported. Judgment 181(25); Mortgages 75.5
Commercial sublease which was not witnessed or acknowledged as required by statute of conveyances was invalid, although
it was signed by both commercial lessee and sublessee. Kilcoyne Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking,
08-30-2004) No. 03CA072, 2004-Ohio-4815, 2004 WL 3564203, Unreported, superseded 2004-Ohio-7272, 2004 WL
3563912. Acknowledgment 6(2)
Witness to fraudulent deed of the leased property to tenant was not liable to residential landlord, in fraudulent scheme action,
for four of landlord's monthly mortgage payments for the property; witness was responsible for making mortgage payments,
and she did not prevent landlord from making mortgage payments. Columbus Investment Group, Inc. v. Maynard (Ohio App.
10 Dist., Franklin, 10-31-2002) No. 02AP-271, No. 02AP-418, 2002-Ohio-5968, 2002 WL 31429808, Unreported. Fraud 60
Witness to fraudulent deed of the leased property to tenant was not liable to residential landlord, in fraudulent scheme action,
for costs of cleaning the premises or for the final utility bill; witness did not live at the property, she did not damage or
threaten to damage the property, and she was not responsible for payment of utility bills. Columbus Investment Group, Inc. v.
Maynard (Ohio App. 10 Dist., Franklin, 10-31-2002) No. 02AP-271, No. 02AP-418, 2002-Ohio-5968, 2002 WL 31429808,
Unreported. Fraud 60
Justices of the peace can, anywhere in state, take acknowledgments of deeds for lands situate in the county in which such
justice was elected. Crumbaugh v Kugler, 2 OS 374 (1853).
Deed is valid though one of the witnesses is incompetent to testify. Doe ex dem. Johnson v. Turner (Ohio 1836) 7 Ohio 216,
PT. II.
Real estate purchase agreement that included condition that permits be obtained for two mobile homes on each lot did not
merge with deeds, even though deeds were executed and later recorded, given that deeds were escrowed on condition of
issuance of the permits, and failure to obtain the permits caused nondelivery of the deeds and nonacceptance by grantees.
(Per curiam with one judge concurring and one judge concurring in the result). Bell v. Turner (Ohio App. 4 Dist., 06-13-
2007) 2007-Ohio-3054, 2007 WL 1748516. Deeds 94
Signature of notary on certificate of acknowledgement will not suffice as one of two witness signatures required for deed to
be valid where only one name is subscribed to attestation clause. State v. Mueller (Ohio App. 1 Dist., 08-29-1997) 122 Ohio
App.3d 483, 702 N.E.2d 139. Deeds 47
Legal title to parcel of real property did not pass where grantors signed deed outside presence of both witnesses and did not
appear before notary public who certified acknowledgement; thus, purchasers at most had equitable interest in property still
titled in vendors that was created upon payment of consideration, or cause of action for breach of contract arising when
defective deed was executed. Basil v. Vincello (Ohio 1990) 50 Ohio St.3d 185, 553 N.E.2d 602, rehearing denied 51 Ohio
St.3d 705, 555 N.E.2d 322. Deeds 49
Striking the phrase “to be his voluntary act and deed” from an acknowledgment of a deed does not invalidate the deed. Hull
v. Hull (Greene 1952) 115 N.E.2d 465, 65 Ohio Law Abs. 534.
That deed to railroad did not have two witnesses when recorded was immaterial, where railroad's grantor had good record
title and plaintiffs and their predecessor in title had due notice. Petersen v. New York Cent. R. Co. (Ottawa 1930) 43 Ohio
App. 398, 182 N.E. 602, 8 Ohio Law Abs. 314. Vendor And Purchaser 228(4)
Grantee cannot witness or take acknowledgment of deed of grantor. Amick v. Woodworth (Ohio 1898) 58 Ohio St. 86, 39
W.L.B. 338, 50 N.E. 437.
Deeds may be proved by grantor, the subscribing witnesses, or the officer before whom the acknowledgment was taken.
Garrett v. Hanshue (Ohio 1895) 53 Ohio St. 482, 34 W.L.B. 289, 42 N.E. 256.
When wife denies her acknowledgment, burden of proof on her to show such fact by clear and convincing proof. Ford v.
Osborne (Ohio 1887) 45 Ohio St. 1, 17 W.L.B. 267, 12 N.E. 526.
Under Statutes of 1837, deed conveying wife's land should be acknowledged by both him and her, as his acknowledgment
after her death is insufficient. Sewall v. Haymaker (U.S.Ohio 1888) 8 S.Ct. 1348, 127 U.S. 719, 32 L.Ed. 299.
Purpose of Ohio's statutory requirements for the acknowledgment and certification of mortgages and other real property
instruments is not only to prevent the perpetration of frauds on the grantors, but also to afford reasonable assurance to those
who deal with or on the faith of such instruments that they are genuine and represent bona fide transactions. In re Gray
(Bkrtcy.S.D.Ohio, 08-14-2009) 410 B.R. 270. Acknowledgment 1; Mortgages 59
Under Ohio law, acknowledgment of deed, mortgage, land contract or lease before notary public or other public official
includes formal execution of certificate by officer taking the acknowledgment. In re Cornelius (Bkrtcy.S.D.Ohio, 07-14-
2009) 408 B.R. 704. Acknowledgment 28.1; Mortgages 59
First and second mortgages on borrower's real property did not substantially comply with the Ohio statute governing the
acknowledgement of deeds and mortgages and were invalid; certifications left blank the name of the person who appeared
before the notary public, the blank acknowledgement clauses did not designate whether an individual or more than one
person acknowledged the mortgages, borrower's initials appeared on every page of both mortgages except the last pages,
which were the acknowledgement pages, and these deficiencies were not corrected within the documents. In re Peed
(Bkrtcy.S.D.Ohio, 03-27-2009) 403 B.R. 525. Mortgages 59
Notwithstanding the omissions in an acknowledgment clause, a mortgage may otherwise substantially comply with the Ohio
statute governing acknowledgement of deeds and mortgages and thus be deemed valid. In re Peed (Bkrtcy.S.D.Ohio, 03-27-
2009) 403 B.R. 525. Mortgages 59
Under Ohio law, acknowledgement clauses' failure to identify the name of the person acknowledging the signing of the first
and second mortgages on borrower's real property rendered the mortgages defective and, thus, invalid against third parties,
even though the notary public and the witness were the same person and even though the actual acknowledgements by
borrower were not disputed. In re Peed (Bkrtcy.S.D.Ohio, 03-27-2009) 403 B.R. 525. Mortgages 59
To the extent a mortgage fails to meet one of the requirements of the Ohio statute governing acknowledgement of deeds and
mortgages, the document is invalid unless the notarial certification substantially complies with the statute. In re Peed
(Bkrtcy.S.D.Ohio, 03-27-2009) 403 B.R. 525. Mortgages 59
Under Ohio law, defective mortgages, which contained blanks in the places on the certificates of acknowledgement where the
name of the person acknowledging the signing of the mortgages should have been identified and which did not otherwise
substantially comply with the Ohio statute governing the acknowledgement of deeds and mortgages, neither took priority
over, nor provided constructive notice to, Chapter 7 trustee as hypothetical bona fide purchaser, and so trustee could avoid
the mortgages in the exercise of his “strong-arm” powers and preserve the mortgages for the benefit of creditors of debtor-
borrowers' bankruptcy estate. In re Peed (Bkrtcy.S.D.Ohio, 03-27-2009) 403 B.R. 525. Bankruptcy 2578; Bankruptcy 2705;
Bankruptcy 2706
Trustee's strong-arm avoidance rights are determined by applicable state law. In re Barkley (Bkrtcy.N.D.Ohio, 06-21-2001)
263 B.R. 553. Bankruptcy 2704
Chapter 13 trustee could avoid, in exercise of his strong-arm powers, mortgage which was not executed in presence of two
witnesses, as required under Ohio law. In re Barkley (Bkrtcy.N.D.Ohio, 06-21-2001) 263 B.R. 553. Bankruptcy 2704
Chapter 7 debtors' voluntary execution of deed to their residence in favor of family member was “transfer” for purposes of
statute precluding debtor from claiming exemption in voluntarily transferred property recovered by trustee, even though deed
was defectively witnessed under Ohio law, inasmuch as, under Ohio law, defectively witnessed deed was valid as between
parties to deed and could be validated by passage of time. In re Downs (Bkrtcy.N.D.Ohio, 12-04-1996) 205 B.R. 93.
Bankruptcy 2782
Under Ohio law, defectively witnessed deed is valid between parties to deed. In re Downs (Bkrtcy.N.D.Ohio, 12-04-1996)
205 B.R. 93. Deeds 49
An acknowledgment taken by a notary public outside of the county in and for which he is commissioned is void, and
therefore the deed is not effective to pass legal title. Spencer v. Fry (Ohio Com.Pl. 1938) 2 Ohio Supp. 286, 28 Ohio Law
Abs. 331, 14 O.O. 77. Acknowledgment 19
An acknowledgment of a deed is not a part of the deed itself; in Ohio it is required only as evidence of execution, or as
authority for registration. Spencer v. Fry (Ohio Com.Pl. 1938) 2 Ohio Supp. 286, 28 Ohio Law Abs. 331, 14 O.O. 77.
Acknowledgment 1
A deed to a cemetery lot issued and executed by a board of township trustees pursuant to RC 517.07 does not require the
acknowledgment provided in RC 5301.01. 1961 OAG 2256.
7. ---- Consideration, deeds
A consideration which would have been sufficient to uphold a use before the statute of uses, or a conveyance by way of
covenant to stand seized under that statute, is sufficient to support a deed of conveyance in this state. Thompson v. Thompson
(Ohio 1867) 17 Ohio St. 649, supplemented 18 Ohio St. 73.
Where deed recites pecuniary consideration, grantor may show by parol a written contract by grantee to support grantor and
wife for life. Vail v. McMillan (Ohio 1867) 17 Ohio St. 617.
Implied or resulting trusts cannot be shown against an absolute deed, though made only for love and affection. Miller v.
Stokely (Ohio 1855) 5 Ohio St. 194. Trusts 87
As between grantor, grantee, and subsequent purchasers, a deed recorded before subsequent purchase may be shown to be a
gift though deed recites valuable consideration. Mitchell's Lessee v. Ryan (Ohio 1854) 3 Ohio St. 377. Deeds 202; Evidence
432
Natural love and affection will not support want of consideration where deed states a valuable consideration. Burrage's
Lessee v. Beardsley (Ohio 1847) 16 Ohio 438, 47 Am.Dec. 382.
Deeds of bargain, sale, and release, for the consideration of an agreement to partition, inure as deeds of partition only.
Dawson v. Lawrence (Ohio 1844) 13 Ohio 543, 42 Am.Dec. 210. Partition 8
May prove other consideration than that written in deed where same does not contradict deed. Steele v. Worthington (Ohio
1825) 2 Ohio 182.
Deed conveying land by debtor to creditor to pay debt is without consideration if debt is not thereby extinguished. Starr v.
Starr (Ohio 1824) 1 Ohio 321.
Deeds conveying father's interest in property to son were deeds of purchase, rather than inter vivos gifts; the deeds provided
that the property was transferred for consideration. Grimes v. Grimes (Ohio App. 4 Dist., 06-24-2009) No. 08CA35, 2009
-Ohio- 3126, 2009 WL 1830761, Unreported. Gifts 5(2)
Contract between plaintiff and defendant, providing that upon closing on purchase of undeveloped lot for which plaintiff and
defendant had submitted a joint offer of purchase, defendant, who had submitted an offer to purchase adjoining developed lot
from common grantor, would release his rights with respect to undeveloped lot, and plaintiff would convey to defendant a 10
foot by 80 foot section of undeveloped lot, which section adjoined developed lot, was supported by consideration, as element
for binding contract; common grantor accepted purchase offer from defendant for developed lot and purchase offer from
plaintiff and defendant for undeveloped lot, and the detriment to defendant, as promisee with respect to plaintiff's promise to
convey, was his surrender of his property rights secured by contract to purchase undeveloped lot. Brown v. King (Ohio App.
1 Dist., 12-29-2006) 170 Ohio App.3d 745, 869 N.E.2d 35, 2006-Ohio-6982. Vendor And Purchaser 12.1
Grantee's failure to fulfill promise to provide care throughout grantor's life, made in consideration for deed conveying real
property, may not be basis for rescinding deed absent written provision in deed concerning forfeiture, or allegations of fraud
and undue influence. Estate of Waugh v. Shepherd (Ohio Com.Pl., 05-25-1994) 75 Ohio Misc.2d 1, 662 N.E.2d 97. Deeds 19
Purchasers' election to forgo rescission and accept performance on part of vendor under terms of land purchase contract did
not waive alleged defective performance on part of vendor absent showing that purchasers intended to relinquish rights and
that waiver was supported by consideration. West v. P.D.G. Dev., Inc. (Ohio Mun., 11-17-1994) 68 Ohio Misc.2d 25, 646
N.E.2d 920. Vendor And Purchaser 158
Omission of acknowledgment in deed of payment of consideration is not conclusive proof that no consideration passed and,
as between the parties, recital of payment in deed is open to explanation and contradiction in action to recover consideration
money, by parol proof showing that in fact no payment or only partial payment had been made. McGovern Builders, Inc. v.
Davis (Miami 1983) 12 Ohio App.3d 153, 468 N.E.2d 90, 12 O.B.R. 477. Deeds 195; Evidence 419(2)
The consideration paid for a conveyance of real estate determines its course of descent, and the recital in the deed of
conveyance of the payment of the consideration constitutes “operative words” within the meaning and intent of the
declaration of this court in the case of Shehy v. Cunningham, 81 Ohio St. 289, 90 N.E. 805, 25 L.R.A. (N.S.) 1194, and for
the purpose of determining the course of descent is conclusive. Thiessen v. Moore (Ohio 1922) 105 Ohio St. 401, 137 N.E.
906, 1 Ohio Law Abs. 245, 20 Ohio Law Rep. 166, 20 Ohio Law Rep. 176. Descent And Distribution 12
The consideration clause in a deed is conclusive for the purpose of giving effect to the operative words of the deed, but for
every other purpose it is open to explanation by parol evidence, and is prima facie evidence only of the amount, kind, and
receipt of the consideration. Shehy v. Cunningham (Ohio 1909) 81 Ohio St. 289, 90 N.E. 805, 7 Ohio Law Rep. 529, 7 Ohio
Law Rep. 576. Evidence 419(2)
Where the consideration expressed in a deed is a valuable one, and the title comes by purchase, and under RS 4159 (See GC
10503-4), descends on the death of the grantee to his widow, parol evidence is inadmissible to show that in fact the title came
by gift and descends to the widow for life only, with remainder to the brother and sister of the grantee in fee, under section
4158 (See GC 10503-4). Groves v. Groves (Ohio 1902) 65 Ohio St. 442, 47 W.L.B. 207, 62 N.E. 1044. Evidence 419(2)
An instrument for the conveyance of lands without substantial valuable consideration, deposited with a third person as an
escrow to be delivered by him to the grantee on the death of the grantor, does not, by relation, vest the title in the grantee at
the date of first delivery to the prejudice of persons who thereafter, without knowledge of the instrument, extend credit to the
grantor. Rathmell v. Shirey (Ohio 1899) 60 Ohio St. 187, 41 W.L.B. 378, 53 N.E. 1098. Deeds 108; Deposits And Escrows
23
In the partition of the lands of an intestate among his children and the children of a deceased son, the portion which the latter
inherit should be charged with an advancement made to their father by such intestate. Parsons v. Parsons (Ohio 1895) 52
Ohio St. 470, 33 W.L.B. 192, 40 N.E. 165, 2 Ohio Leg. N. 437. Descent And Distribution 105; Partition 83; Partition 87
Deed from father to son with contract for father's support by son is mere gift. Bowlus v. Shanabarger (Ohio Cir. 1899) 10
Ohio C.D. 167.
Mortgagor's waiver or conveyance of equity of redemption, by executing a deed in lieu of foreclosure to be held in escrow for
mortgagee's assignee as alleged security for assignee's agreement to purchase the mortgage and allegedly to induce assignee
to provide short-term financing for mortgagor's down payment on purchase of hotel, violated the rule prohibiting waiver of
equity of redemption in the mortgage agreement; the origination of the mortgage and assignee's purchase of the mortgage
were part of the same transaction, mortgagor received no new consideration from assignee for executing the deed in lieu of
foreclosure, and no default had yet occurred when mortgagor executed the deed in lieu of foreclosure. Panagouleas Interiors,
Inc. v. Silent Partner Group, Inc. (Ohio App. 2 Dist., Montgomery, 03-22-2002) No. 18864, 2002-Ohio-1304, 2002 WL
441409, Unreported. Mortgages 596
8. ---- Deed of trust, deeds
A deed of trust given to pay creditors is absolute, while a deed of trust given to secure creditors is conditional and defeasible.
Hoffman, Burneston & Co. v. Mackall (Ohio 1855) 5 Ohio St. 124, 64 Am.Dec. 637.
Where legal estate is granted to trustees without words of perpetuity, the estate taken by trustee is commensurate with the
trust. Williams v. First Presbyterian Society in Cincinnati (Ohio 1853) 1 Ohio St. 478.
Trust deed containing covenant of general warranty binding grantor and his heirs forever, may operate by way of estoppel to
perpetuate trust. Williams v. First Presbyterian Society in Cincinnati (Ohio 1853) 1 Ohio St. 478.
Deed to trustees to convert realty into money and pay liens and distribute balance to creditors, is deed of assignment for
benefit of all creditors. Assignment of Jones (Ohio Com.Pl. 1897) 5 Ohio Dec. 233, 8 Ohio Dec. 123, 5 Ohio N.P. 102,
affirmed 59 Ohio St. 228, 41 W.L.B. 73, 52 N.E. 839.
Where a deed contains an explicit reference to a trust agreement as the basis for execution of the deed, the two documents are
treated and construed as a single instrument of conveyance. Johnston v. Thomas (S.D.Ohio 1967) 15 Ohio Misc. 242, 275
F.Supp. 32, 43 O.O.2d 27, 44 O.O.2d 447.
9. ---- Acknowledgment; witnesses, mortgages
In an action to enforce a written instrument in the form of a real estate mortgage and purporting to have been executed and
acknowledged as required by statute, an answer setting forth that the defendant never acknowledged the execution of such
instrument is sufficient. Williamson v. Carskadden (Ohio 1881) 36 Ohio St. 664. Acknowledgment 5; Mortgages 59
A mortgage of a leasehold for ten years must be acknowledged. Paine, Kendall & Co. v. Mason (Ohio 1857) 7 Ohio St. 198.
Acknowledgment 4
Where a mortgage is defective in its execution by having the name of but one witness subscribed to the attestation clause, the
official signature of the justice of the peace to his certificate will not supply the deficiency in the attestation. White v.
Denman (Ohio 1853) 1 Ohio St. 110. Acknowledgment 49; Mortgages 59; Mortgages 58
Mortgage of real property owned by an individual that was used to secure a loan to the property owner's business
substantially complied with statutory requirement that the mortgagor's signature be acknowledged by a notary or other
official, and thus mortgage had priority over a later-recorded mortgage in favor of a different lender, even though owner's
signature was only notarized in his capacity as principal of the business and not in his individual capacity; parties to the
mortgage all intended owner to be bound individually, and notary's acknowledgment was consistent with the terms set forth
on the face of the mortgage that the mortgagor was an individual. Citifinancial, Inc. v. Howard (Ohio App. 3 Dist., 09-15-
2008) No. 6-08-08, 2008 -Ohio- 4648, 2008 WL 4193051, Unreported. Mortgages 59; Mortgages 163(2)
Servicing agent on a mortgage loan did not commit fraud under Ohio law by adding a prepayment rider to the mortgage loan
without the mortgagor's knowledge; the mortgagor signed the prepayment rider on the date of the loan closing, indicating that
he was aware of the existence of the rider and that he voluntarily accepted the financial obligation that it represented. Brown
v. First Nationwide Mortg. Corp. (C.A.6 (Ohio), 11-09-2006) No. 05-3597, 206 Fed.Appx. 436, 2006 WL 3289232,
Unreported. Mortgages 216
Where husband and wife were both named as mortgagors, but only husband signed promissory note to mortgagee, wife did
not owe funds to mortgagee pursuant to the note. ABN AMRO Mtg. Group Inc. v. Stantz (Ohio App. 5 Dist., Tuscarawas,
04-20-2004) No. 2003 AP 07 0057, 2004-Ohio-2089, 2004 WL 878296, Unreported, appeal not allowed 103 Ohio St.3d
1462, 815 N.E.2d 678, 2004-Ohio-5056. Husband And Wife 17; Mortgages 56
Where a recorded mortgage contains only one subscribing witness and after the error is discovered the name of another
witness is added without re-execution, the mortgage is defectively executed. American Bank of Port Clinton v. Swartzlander
(Ottawa 1935) 21 Ohio Law Abs. 134.
Trust indenture written upon thirty-five pages, bound together with ordinary spreading brass holders, with some of body of
instrument upon page containing acknowledgment complies with demands of this section. Schlaeger v. Title Guarantee &
Trust Co. (Hamilton 1932) 13 Ohio Law Abs. 5, 37 Ohio Law Rep. 474.
Where a mortgage is executed in such form that the acknowledgment of the mortgagors appears upon a separate sheet, at the
top of which is written the final two words of the mortgage, “original trustee,” the requirement of this section is satisfied.
Schlaeger v. Title Guarantee & Trust Co. (Hamilton 1932) 13 Ohio Law Abs. 5, 37 Ohio Law Rep. 474.
Mortgage which was defectively executed insofar as mortgagor's signature was not properly acknowledged by a notary public
was not entitled to priority over subsequent, properly recorded mortgage. Mtge. Electronic Registration Sys. v. Odita (Ohio
App. 10 Dist., 10-19-2004) 159 Ohio App.3d 1, 822 N.E.2d 821, 2004-Ohio-5546. Mortgages 59; Mortgages 163(1)
Any alleged defect in the mortgage would not have affected the cognovit note or judgment entered in favor of bank and
against debtor and guarantors. Natl. City Bank v. Facilities Asset Mgt., Inc. (Ohio App. 8 Dist., 08-27-2001) 145 Ohio
App.3d 340, 762 N.E.2d 1060, appeal not allowed 94 Ohio St.3d 1411, 759 N.E.2d 787, reconsideration denied 94 Ohio
St.3d 1455, 762 N.E.2d 371. Judgment 54
Even if the acknowledgment of guarantors' signatures were proven to be defective, the mortgage would still have been
effective between bank and debtor, whose indebtedness on cognovit note was guaranteed. Natl. City Bank v. Facilities Asset
Mgt., Inc. (Ohio App. 8 Dist., 08-27-2001) 145 Ohio App.3d 340, 762 N.E.2d 1060, appeal not allowed 94 Ohio St.3d 1411,
759 N.E.2d 787, reconsideration denied 94 Ohio St.3d 1455, 762 N.E.2d 371. Mortgages 56
Guarantors of indebtedness of cognovit note were not entitled to a hearing or relief from cognovit judgments, based on claim
that their signatures on mortgage documents were not properly acknowledged by the notary public; mortgage was valid,
guarantors did not deny under oath signing the mortgage, both were available to testify, and they did not argue that relief
from cognovit judgment against them was warranted even if any defect existed. Natl. City Bank v. Facilities Asset Mgt., Inc.
(Ohio App. 8 Dist., 08-27-2001) 145 Ohio App.3d 340, 762 N.E.2d 1060, appeal not allowed 94 Ohio St.3d 1411, 759
N.E.2d 787, reconsideration denied 94 Ohio St.3d 1455, 762 N.E.2d 371. Judgment 68.1(4)
An acknowledgment lacking a statement of the place it was performed is nonetheless valid. Citizens Home Sav. Co. v.
Century Const. Co. (Lorain 1985) 27 Ohio App.3d 245, 500 N.E.2d 879, 27 O.B.R. 287.
An acknowledgment taped to a mortgage is legally effective. Citizens Home Sav. Co. v. Century Const. Co. (Lorain 1985) 27
Ohio App.3d 245, 500 N.E.2d 879, 27 O.B.R. 287.
A mortgage is valid even though the notary public forgot to include the date it was notarized. Citizens Home Sav. Co. v.
Century Const. Co. (Lorain 1985) 27 Ohio App.3d 245, 500 N.E.2d 879, 27 O.B.R. 287.
The mere signing of a mortgage in the presence of an officer authorized to take an acknowledgment thereof may constitute a
proper acknowledgment of such instrument within the meaning of RC 5301.01. Wayne Bldg. & Loan Co. v. Hoover (Ohio
1967) 12 Ohio St.2d 62, 231 N.E.2d 873, 41 O.O.2d 279.
Where evidence relating to alleged defects in the acknowledgment of a mortgage is confined to the testimony of the
mortgagors, it is not sufficient to support a finding contrary to the certificate of acknowledgment and the affirmative
testimony of the notary himself. Paramount Finance Co. v. Berk (Cuyahoga 1962) 179 N.E.2d 788, 88 Ohio Law Abs. 419.
A mortgage by two persons which is not signed and acknowledged by either mortgagor in the presence of two witnesses, and
as to which the signing by one mortgagor was not in fact acknowledged before a notary public is not constructive notice to
subsequent mortgagees. Citizens Nat. Bank in Zanesville v. Denison (Ohio 1956) 165 Ohio St. 89, 133 N.E.2d 329, 59 O.O.
96.
Positive statement by notary or witnesses of inflexible rule never to sign instrument, unless parties signed in their presence,
carries great weight. Coshocton Nat. Bank v. Hagans (Coshocton 1931) 40 Ohio App. 190, 178 N.E. 330, 10 Ohio Law Abs.
203. Mortgages 74
That signature was apparently written with different ink was not conclusive that signatures were not duly witnessed, or that
mortgage was not acknowledged. Coshocton Nat. Bank v. Hagans (Coshocton 1931) 40 Ohio App. 190, 178 N.E. 330, 10
Ohio Law Abs. 203. Mortgages 74
A mortgage acknowledged before a notary who was a stockholder, but not an officer of the company, and was witnessed by a
person who was the secretary of the company, is valid. Falls Savings & Loan Ass'n v. Brumit (Summit 1928) 28 Ohio App.
60, 161 N.E. 295, 6 Ohio Law Abs. 39, 6 Ohio Law Abs. 112.
In taking and certifying acknowledgment as provided in this section, the act of notary or other officer is ministerial and not
judicial. Read v. Toledo Loan Co. (Ohio 1903) 68 Ohio St. 280, 48 W.L.B. 609, 67 N.E. 729, 96 Am.St.Rep. 663, 1 Ohio
Law Rep. 42, 1 Ohio Law Rep. 357.
The fact that a stockholder of a corporation who is named in a mortgage given by his corporation signs it as a witness does
not render it invalid. Read v. Toledo Loan Co. (Ohio 1903) 68 Ohio St. 280, 48 W.L.B. 609, 67 N.E. 729, 96 Am.St.Rep.
663, 1 Ohio Law Rep. 42, 1 Ohio Law Rep. 357.
A regular statutory certificate of acknowledgment of a mortgage is, in the absence of fraud, conclusive evidence of the facts
therein stated. Lemmon v. Hutchins (Ohio Cir. 1885) 1 Ohio C.D. 217, dismissed. Acknowledgment 55(1)
Where notary taking acknowledgment is stockholder and officer of the association to which mortgage is given, he may
legally take same. Horton v. Columbian Bldg. & Loan Soc. (Ohio Dist. 1881) 6 W.L.B. 141.
Ohio statute enacted subsequent to commencement of trustee's strong-arm avoidance claims to set aside mortgages not
properly witnessed in accordance with Ohio law, which provided that mortgage is presumed valid even if not attested by two
witnesses and that recording of mortgage is constructive notice of instrument to all persons, could not divest trustee of strong-
arm rights which she possessed as hypothetical bona fide purchaser under prior Ohio law as of commencement of bankruptcy
cases. In re Huffman (C.A.6 (Ohio), 05-18-2005) 408 F.3d 290. Bankruptcy 2705; Mortgages 74; Mortgages 89
Under Ohio law, notary's signature and seal, without language similar to, if not the same as, the statutorily suggested
acknowledgement language, is insufficient to constitute an acknowledgment of execution of mortgage. In re Cornelius
(Bkrtcy.S.D.Ohio, 07-14-2009) 2009 WL 2179128. Mortgages 59
Acknowledgement of mortgage that did not contain the name of debtor-mortgagor making acknowledgement was defective
under Ohio law, and mortgage could not be regarded as being in substantial compliance with state law requirements, though
debtor-mortgagor's name appeared in granting clause, though she initialed each page of mortgage document, and though date
of acknowledgement corresponded to date of execution of mortgage; there was nothing in mortgage document to indicate that
debtor-mortgagor had appeared before notary and acknowledged that she signed the mortgage. In re Cornelius
(Bkrtcy.S.D.Ohio, 07-14-2009) 2009 WL 2179128. Mortgages 59
Mortgage that was not properly acknowledged by debtor-mortgagor in accordance with requirements of Ohio law, and that
was not entitled to be recorded as not substantially complying with statutory requirements, did not provide constructive
notice of mortgagor's interest in property, and was avoidable by Chapter 7 trustee in exercise of strong-arm powers as
hypothetical bona fide purchaser, without regard to any actual knowledge of mortgage that trustee possessed. In re Cornelius
(Bkrtcy.S.D.Ohio, 07-14-2009) 2009 WL 2179128. Bankruptcy 2578; Bankruptcy 2586.1; Bankruptcy 2705; Mortgages
171(4)
Under Ohio law, mortgage acknowledgment clause that omitted name of borrower-husband, but had borrower-wife's name
typed out, and contained no evidence establishing that notary public acknowledged borrower-husband's signature did not
substantially comply with Ohio statute requiring that signature of mortgagor be acknowledged by notary public and that
notary public certify acknowledgment, and therefore mortgage was invalid and unrecordable as to borrower-husband's
undivided one-half interest in property and could be avoided by Chapter 7 trustee, acting as hypothetical bona fide purchaser
without constructive notice of mortgage pursuant to Bankruptcy Code's strong-arm statute, even though both borrowers were
listed on mortgage's first page, both signed mortgage, and both initialed every page of mortgage. In re Wahl
(Bkrtcy.S.D.Ohio, 06-30-2009) 2009 WL 1910967. Bankruptcy 2578; Bankruptcy 2587; Bankruptcy 2705; Mortgages 59;
Mortgages 91
Mortgage that was defectively executed and not in substantial compliance with statutory acknowledgment requirements, due
to omission of name of borrower-husband from acknowledgment clause and lack of evidence establishing that notary public
acknowledged borrower-husband's signature, was treated as unrecorded under Ohio law and thus could not put trustee in
borrowers' Chapter 7 bankruptcy case on constructive or inquiry notice of mortgage on borrower-husband's undivided one-
half interest in property, so as to preclude trustee's avoidance of that interest pursuant to trustee's strong-arm powers as
hypothetical bona fide purchaser, even though mortgage was properly recorded as to borrower-wife and included information
to indicate that borrower-husband was intended to be mortgagor. In re Wahl (Bkrtcy.S.D.Ohio, 06-30-2009) 2009 WL
1910967. Bankruptcy 2578; Bankruptcy 2587; Bankruptcy 2705; Mortgages 59; Mortgages 171(4)
While certificate of acknowledgement that followed Chapter 7 debtors' signatures on mortgage did not contain the words
“acknowledged before me,” instead substituting the phrase “executed before me,” substituted phrase did not affect validity of
acknowledgement under governing Ohio law, as predicted by bankruptcy court in that state, and did not allow Chapter 7
trustee to avoid mortgage, as one not entitled to be recorded, in exercise of his strong-arm powers as hypothetical bona fide
purchaser; phrase “executed before me,” when combined with notary's statement that it was debtors who had executed
mortgage documents before her, and that it was debtors who read and examined these documents and affixed their signatures
as their free act and deed, sufficiently conveyed, either by its terms or by necessary inference, that debtors had signed
mortgage documents in notary's presence, that notary knew or had satisfactory evidence that debtors were the persons named
in mortgage documents, and that debtors executed documents for purposes stated therein. In re Roberts (Bkrtcy.S.D.Ohio, 03-
25-2009) 2009 WL 794486. Bankruptcy 2705; Mortgages 59
Mortgage that did not contain an acknowledgment or a certification of acknowledgment for debtor-wife, who was also a
borrower and mortgagor in connection with mortgage loan transaction, was defective under Ohio law and not entitled to be
recorded, though wife signed mortgage in the borrowers' signature block and initialed each page, where mortgage contained
no indicia that she had acknowledged instrument before notary. In re Andrews (Bkrtcy.S.D.Ohio, 02-20-2008) 2008 WL
5869075.
Under Ohio law, acknowledgment before notary public includes formal execution of certificate by officer taking the
acknowledgment. In re Andrews (Bkrtcy.S.D.Ohio, 02-20-2008) 2008 WL 5869075.
Under Ohio law, acknowledgement of mortgage was not defective due to failure of certificate of acknowledgment to state
expiration date of notary public's appointment, such that recording of mortgage provided constructive notice of mortgage lien
and prevented avoidance thereof by trustee of debtor-mortgagors' Chapter 7 estate in exercise of his strong-arm powers as
hypothetical bona fide purchaser. In re Robinson (Bkrtcy.S.D.Ohio, 03-26-2008) 2008 WL 5869074.
Even assuming that notary's failure to print her name near her signature on acknowledgement of mortgage rendered the
acknowledgement defective under Ohio law, acknowledgement substantially complied with requirements of Ohio law, such
that mortgage was properly recorded and not subject to avoidance in strong-arm proceeding by trustee of debtor-mortgagors'
Chapter 7 estate, where notary's signature was perfectly legible. In re Robinson (Bkrtcy.S.D.Ohio, 03-26-2008) 2008 WL
5869074.
Under Ohio law, certification of acknowledgement of mortgage was not defective either because notary's name was not
inscribed on seal or because notary failed to print, type or stamp her name near her signature on certificate of
acknowledgment, where notary's name appeared on acknowledgement in form of her signature; accordingly, recording of
mortgage provided constructive notice of mortgage lien and prevented avoidance thereof by trustee of debtor-mortgagors'
Chapter 7 estate in exercise of his strong-arm powers as hypothetical bona fide purchaser. In re Robinson (Bkrtcy.S.D.Ohio,
03-26-2008) 2008 WL 5869074.
Under Ohio law, acknowledgment before notary public includes formal execution of certificate by officer taking the
acknowledgment. In re Robinson (Bkrtcy.S.D.Ohio, 03-26-2008) 2008 WL 5869074.
Under Ohio law, mortgage was valid as between mortgagors and mortgagee when mortgage was signed by mortgagors and
their signatures were notarized, mortgage listed name and mailing address of mortgagee, mortgage contained both amount of
debt secured and, by way of street address and parcel identification number, description of mortgaged property, mortgage
was recorded in county in which property was located, and mortgagors and mortgagee intended that property be subject to
mortgage. In re Bunn (Bkrtcy.S.D.Ohio, 09-29-2007) 376 B.R. 835. Mortgages 75.5
Purported oral stipulation that Chapter 7 debtor signed mortgage in presence of notary did not fit into categories of evidence
permitted by summary judgment rule, and thus did not support motion for summary judgment by mortgagee in trustee's
action to invalidate and avoid mortgage. In re Leahy (Bkrtcy.S.D.Ohio, 09-28-2007) 376 B.R. 826. Bankruptcy 2164.1
Under Ohio law, notary's signature and seal, without additional language, was insufficient to constitute acknowledgment for
execution of mortgage, and thus Chapter 7 trustee in mortgagor's bankruptcy case was entitled to avoid mortgage as
subsequent bona fide purchaser, even though notary wrote his name and included his commission information in area of
mortgage designated for acknowledgment. In re Bozman (Bkrtcy.S.D.Ohio, 03-31-2007) 365 B.R. 824. Acknowledgment 29;
Bankruptcy 2705; Mortgages 59
Even if the phrase “witness my hand,” as used in notary acknowledgment clause in mortgage, qualified as form of jurat, it did
not satisfy requirement for proper acknowledgement under Ohio law, that it identify the person(s) whose execution of
mortgage is being acknowledged. In re Nolan (Bkrtcy.S.D.Ohio, 03-21-2007) 365 B.R. 804. Mortgages 59
Under Ohio law, error in notary acknowledgment clause, which identified only one of the two mortgagors as acknowledging
mortgage before notary, did not render mortgage defective and subject to avoidance by trustee of debtor-mortgagors' Chapter
7 estate, in exercise of his strong-arm powers, where mortgage contained names of both mortgagors and both mortgagors
initialed every page, and where, based on use of the plural pronouns “they” and “their” in balance of acknowledgement
clause, it was clear that both mortgagors had acknowledged instrument before notary. In re Fryman (Bkrtcy.S.D.Ohio, 07-15-
2004) 314 B.R. 137. Bankruptcy 2704; Mortgages 59
Under Ohio law, substantial, and not strict, compliance with Ohio statute requiring that mortgages must be acknowledged is
all that is needed. In re Fryman (Bkrtcy.S.D.Ohio, 07-15-2004) 314 B.R. 137. Mortgages 59
Testimony of Chapter 7 debtor-mortgagor that female notary who acknowledged mortgage was not present in his home for
refinancing transaction, and that, aside from his wife, only other person present was a man, was sufficient to overcome
notary's acknowledgement; moreover, in absence of any contrary evidence from mortgagee regarding its usual practices or
the like, debtor-mortgagor's testimony established that mortgage was not properly notarized, so as to be subject to avoidance
by Chapter 7 trustee in exercise of strong-arm powers. In re Bowling (Bkrtcy.S.D.Ohio, 06-10-2004) 314 B.R. 127.
Bankruptcy 2727(1); Mortgages 74
Under amended Ohio statute that governs execution of mortgages, mortgagor's signature on mortgage must be acknowledged
before a notary public or similarly designated officer, in order for mortgage to be properly executed and entitled to recording,
so as to provide constructive notice to third parties. In re Bowling (Bkrtcy.S.D.Ohio, 06-10-2004) 314 B.R. 127. Mortgages
59
Whether, for strong-arm avoidance purposes, notary was required to witness debtor-mortgagor's execution of mortgage in
order for recorded mortgage to provide constructive notice of mortgagee's lien was question governed by amended Ohio
statute that was in effect when Chapter 7 petition was filed, and not by repealed statute in effect when mortgage was signed.
In re Bowling (Bkrtcy.S.D.Ohio, 06-10-2004) 314 B.R. 127. Bankruptcy 2704; Mortgages 59
Evidence that mortgages were signed by two persons, other than mortgagors, was not the same as evidence that two persons
witnessed or were present when mortgagors signed the mortgages, for purposes of determining mortgages' validity under
Ohio law. In re Baker (Bkrtcy.N.D.Ohio, 10-08-2003) 300 B.R. 298. Mortgages 74
Under Ohio law, when party seeks to challenge a notarial acknowledgment contained in mortgage, he must establish his
challenge by clear and convincing evidence. In re Collins (Bkrtcy.S.D.Ohio, 04-16-2003) 292 B.R. 842. Mortgages 74
Under Ohio law, notarial acknowledgment is generally conclusive evidence of facts as set forth therein. In re Collins
(Bkrtcy.S.D.Ohio, 04-16-2003) 292 B.R. 842. Acknowledgment 55(1)
Mortgage holder failed to establish that it had meritorious defense to Chapter 7 trustee's claim that mortgage was defectively
executed and thus voidable by bona fide purchaser, as required to be entitled to relief from default judgment entered in
trustee's favor; holder did not affirmatively assert that requisite two witnesses were present when mortgage papers were
signed, contrary to trustee's allegations, or address efforts made to determine whether two witnesses whose names appeared
on mortgage were actually present, and holder did not support claim that relief available to trustee was limited under
Bankruptcy Code. In re Cassidy (Bkrtcy.N.D.Ohio, 02-05-2002) 273 B.R. 531. Bankruptcy 2729
Chapter 7 trustee could not avoid mortgage in exercise of strong-arm powers, on theory that it was not properly executed in
presence of two witnesses as required under Ohio law, where debtors' affidavits that only one witness was present when
mortgage was signed were contradicted by their testimony two weeks earlier, before significance of witness issue was
explained to them, that they believed that there were two witnesses, as well as by testimony of closing agent. In re Farrell
(Bkrtcy.S.D.Ohio, 09-04-2001) 269 B.R. 181. Bankruptcy 2704
Assignee of debtors' defectively witnessed mortgage, which had been avoided by Chapter 7 trustee pursuant to his strong-arm
powers, was not entitled to a replacement lien under section of the Bankruptcy Code governing liability of transferee of
avoided transfer; upon avoidance, debtors' interest was automatically preserved and brought into the estate, all without resort
to the separate recovery mechanism set forth in that section of the Code. In re Burns (6th Cir.BAP (Ohio), 11-02-2001) 269
B.R. 20, affirmed 322 F.3d 421. Bankruptcy 2701; Bankruptcy 2706
Chapter 7 trustee could avoid mortgage on Ohio real estate owned by debtors where mortgage was not witnessed by at least
two witnesses, as required under Ohio law. In re Burns (6th Cir.BAP (Ohio), 11-02-2001) 269 B.R. 20, affirmed 322 F.3d
421. Bankruptcy 2704
Avoidance of mortgage by Chapter 7 trustee in exercise of strong-arm powers, on ground that mortgage was not properly
witnessed under Ohio law, was remedy independent from any attempt by trustee to recover from mortgagee, and it was only
to extent that trustee, after avoiding mortgage, pursued recovery from mortgagee that it could assert good faith transferee
defense. In re Priest (Bkrtcy.N.D.Ohio, 05-25-2000) 268 B.R. 135. Bankruptcy 2701; Bankruptcy 2704
Mortgage which is not executed in presence of two witnesses, as required under Ohio law, is deemed invalid, and is not
entitled to be recorded. In re Barkley (Bkrtcy.N.D.Ohio, 06-21-2001) 263 B.R. 553. Mortgages 58; Mortgages 59; Mortgages
91
Where notary public signed her name in capacity of notary public only, and not as witness, she could not be regarded as
second witness, for purpose of satisfying Ohio statute requiring that mortgagors' execution of mortgage must be
acknowledged and attested by two witnesses. In re Caldwell (Bkrtcy.S.D.Ohio, 11-22-2000) 257 B.R. 241. Mortgages 59
Allegations in Chapter 13 debtor's complaint, that he had never signed mortgage document and never agreed to encumber his
home with mortgage in favor of bank, and that purported signature on mortgage was forgery, were not sufficient to state
claim for avoidance of bank's mortgage under bankruptcy statutes dealing with allowance and disallowance of claims and
with determination of creditor's secured status. In re Lee (Bkrtcy.N.D.Ohio, 01-05-2000) 249 B.R. 864. Bankruptcy 2923
Under Ohio law, plaintiff bears heavy burden in impeaching execution of mortgage which on its face appears to have been
properly executed in presence of two witnesses, and must show that mortgage was not properly executed by clear and
convincing evidence. In re Williams (Bkrtcy.N.D.Ohio, 11-03-1999) 240 B.R. 884. Mortgages 74
In adversary proceeding brought by trustee, in exercise of his strong-arm powers as subsequent bona fide purchaser, to set
aside mortgage as not having been properly executed and not entitled to be recorded under Ohio law, trustee satisfied burden
of overcoming presumptive validity of mortgage, which appeared to have been validly executed on its face, by introducing
credible testimony of notary and of Chapter 7 debtor-mortgagors that mortgage was not signed in presence of two witnesses
as required under Ohio law; accordingly, mortgage was avoidable under strong-arm provision. In re Lepelley
(Bkrtcy.N.D.Ohio, 05-11-1999) 233 B.R. 802. Bankruptcy 2727(1)
Mortgagee was under no obligation to properly perfect its mortgage, of kind that might support breach of contract claim by
debtor-mortgagors for mortgagee's failure to ensure that mortgage was properly executed in presence of two witnesses as
required under Ohio law. In re Lepelley (Bkrtcy.N.D.Ohio, 05-11-1999) 233 B.R. 802. Mortgages 211
Mortgagee owed no duty of care to debtor-mortgagors, of kind which might support negligence claim under Ohio law, to see
that mortgage was properly executed in presence of two witnesses; while mortgagee's failure to properly perfect its mortgage
might have caused hardship for debtor-mortgagors, perfection of mortgage was for principal benefit of mortgagee, not
debtors. In re Lepelley (Bkrtcy.N.D.Ohio, 05-11-1999) 233 B.R. 802. Mortgages 211
Under Ohio law, invalid mortgage lien is binding only between the parties and is not effective against valid judgment lien or
against bankruptcy trustee, in his or her capacity as “hypothetical judicial lien creditor.” In re Burnham (Bkrtcy.N.D.Ohio,
03-08-1999) 231 B.R. 270. Bankruptcy 2704; Mortgages 151(5); Mortgages 211
Chapter 7 trustee, as party who sought to avoid mortgage in exercise of strong-arm powers as not having been properly
executed in accordance with Ohio law, failed to satisfy burden of showing that mortgage was not properly signed in presence
of two witnesses; mortgage contained names of two witnesses and was properly acknowledged in accordance with Ohio law,
and debtor's testimony that only the closing agent was present in room when she signed mortgage documents was
contradicted by testimony of closing agent and other alleged signatory. In re Burnham (Bkrtcy.N.D.Ohio, 03-08-1999) 231
B.R. 270. Bankruptcy 2727(1)
Home refinancier whose mortgage was not properly executed in presence of two witnesses, as required under Ohio law,
could not use doctrine of equitable subrogation to succeed to rights of prior mortgagee whose claim was satisfied with
proceeds of its loan; equitable subrogation claim was not available as against Chapter 7 trustee in his capacity as hypothetical
judicial lien holder, who did not have constructive notice of home refinancier's interest as result of its improperly executed
mortgage. In re Zaptocky (Bkrtcy.N.D.Ohio, 11-20-1998) 231 B.R. 260, affirmed 232 B.R. 76, affirmed 250 F.3d 1020,
rehearing en banc denied. Bankruptcy 2704; Bankruptcy 2823
Chapter 7 trustee seeking to set aside home refinancier's mortgage in exercise of strong-arm powers, on ground that mortgage
was allegedly not signed in presence of two witnesses as required under Ohio law, satisfied burden of rebutting this notarized
document's presumptive validity, though mortgage bore signatures of two witnesses, and though notary testified that it was
mortgagee's practice to always have two witnesses present and that he would have followed company policy; mortgagors'
testimony that only they and notary were present at closing in their home was more persuasive, as home refinancing was
extraordinary event in mortgagors' lives, and as they could be expected to be more aware of who was present in their own
home. In re Zaptocky (Bkrtcy.N.D.Ohio, 11-20-1998) 231 B.R. 260, affirmed 232 B.R. 76, affirmed 250 F.3d 1020,
rehearing en banc denied. Bankruptcy 2727(1)
Fact that mortgagee had policy which dictated that mortgage be signed in presence of two witnesses was not conclusive
evidence that this policy was adhered to in specific case, so as to preclude trustee from setting aside mortgage in exercise of
strong-arm powers, as not having been properly executed under Ohio law. In re Zaptocky (Bkrtcy.N.D.Ohio, 11-20-1998)
231 B.R. 260, affirmed 232 B.R. 76, affirmed 250 F.3d 1020, rehearing en banc denied. Bankruptcy 2727(1)
Under Ohio law, improperly executed mortgage is not entitled to be recorded and is not constructive notice as to subsequent
mortgagees. In re Zaptocky (Bkrtcy.N.D.Ohio, 11-20-1998) 231 B.R. 260, affirmed 232 B.R. 76, affirmed 250 F.3d 1020,
rehearing en banc denied. Mortgages 55; Mortgages 171(4)
Under Ohio law, mortgage which is attested by only one witness is invalid. In re Zaptocky (Bkrtcy.N.D.Ohio, 11-20-1998)
231 B.R. 260, affirmed 232 B.R. 76, affirmed 250 F.3d 1020, rehearing en banc denied. Mortgages 58
Under Ohio law, mortgage which, on its face, was apparently duly executed and recorded is entitled to presumption of
validity, and in order to rebut this presumption, contesters must show that mortgage is defective. In re Zaptocky
(Bkrtcy.N.D.Ohio, 11-20-1998) 231 B.R. 260, affirmed 232 B.R. 76, affirmed 250 F.3d 1020, rehearing en banc denied.
Mortgages 86(1)
Under Ohio law, mortgage witnessed by two persons was not invalid on ground that it was improperly witnessed. In re
Perrysburg Marketplace Co. (Bkrtcy.N.D.Ohio, 04-09-1997) 208 B.R. 148. Mortgages 58
The fact that the witnesses who attest the signing of a mortgage are agents or employees of the mortgagee does not render the
mortgage invalid. In re Floater Vehicle, Inc. (Bkrtcy.S.D.Ohio 1989) 105 B.R. 420.
Where a mortgage is executed on behalf of a corporate mortgagor by the president and secretary-treasurer of the corporation,
a certificate of acknowledgment executed by a notary public that states that the corporation personally appeared and fails to
state who appeared on behalf of the corporation, substantially complies with the requirements of RC 5301.01 and RC
147.55(B). Mid-American Nat. Bank & Trust Co. v. Gymnastics Internat'l, Inc. (Lucas 1982) 6 Ohio App.3d 11, 451 N.E.2d
1243, 6 O.B.R. 34.
10. ---- Acknowledgment; certification; witnesses, leases
Vendor's attorney did not breach duty to vendor in preparing legal documents relating to lease/option agreement by which
purchaser acquired motel, barn, and 65 acres of land for $120,000; vendor provided attorney with names and addresses of the
eight properties that were the subject of the agreement and provided that same information to purchaser's managing member,
who provided the information to the title insurance company, and description included the 65 acres. Starman, Inc. v. Jaftak
Realty Investment, Ltd. (Ohio App. 5 Dist., Ashland, 02-15-2006) No. 04-COA-079, 2006-Ohio-779, 2006 WL 401628,
Unreported, appeal not allowed 110 Ohio St.3d 1411, 850 N.E.2d 72, 2006-Ohio-3306. Attorney And Client 109
Lease between condominium association and partnership, which allowed partnership to occupy portion of condominium
property and provided for annual renewals “solely at the option of the Lessee under the same terms and conditions set forth
herein,” was a perpetual lease, and thus association could not unilaterally refuse to renew the lease; use of word “solely”
indicated the clear intent of the parties to make the lease perpetually renewable at the partnership's option. Orchard Isle
Mobile Home Park I Condominium Assn. Inc. v. Sandy Shores (Ohio App. 6 Dist., Ottawa, 01-27-2006) No. OT-05-018,
2006-Ohio-326, 2006 WL 205110, Unreported. Landlord And Tenant 87
Statements made by landlord to potential commercial tenant that negotiating a commercial lease would be “no big deal” and
that a lease was “totally negotiable” were not false as required for a fraud claim, where landlord negotiated with tenant and
exchanged several draft lease agreements, but the parties failed to reach an agreement on the terms of the lease, and the
proposed lease was similar to the terms tenant had with current commercial landlord. Veterinary Dermatology, Inc. v. Bruner
(Ohio App. 1 Dist., Hamilton, 10-21-2005) No. C-040648, 2005-Ohio-5552, 2005 WL 2679628, Unreported. Fraud 13(1)
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 GC 8510
(RC 5301.01), which requires the acknowledgment to be certified on the same sheet on which the instrument is written or
printed. S.S. Kresge Co. v. Butte (Ohio 1939) 136 Ohio St. 85, 23 N.E.2d 944, 16 O.O. 5. Acknowledgment 29
In the absence of fraud, a lessor who has signed a lease to which his acknowledgment before a justice of the peace is
appended in the regular form, cannot avoid the lease on the sole ground that his acknowledgment was taken over the
telephone. Logan Gas Co. v. Keith (Ohio 1927) 117 Ohio St. 206, 158 N.E. 184, 5 Ohio Law Abs. 422, 25 Ohio Law Rep.
386.
An acknowledgment of a lease taken by a notary public or justice of the peace at a place within the state and outside of the
county in and for which such notary public or justice of the peace is commissioned, for lands located outside of such county,
is null and void. Empire Gas & Fuel Co. v. Coolahan (Ohio 1925) 112 Ohio St. 30, 146 N.E. 389, 3 Ohio Law Abs. 99, 23
Ohio Law Rep. 36, 23 Ohio Law Rep. 37.
Under Ohio law, mere fact that mortgage was on registered land did not excuse mortgage lender from having to comply with
statutory requirements for acknowledgment of mortgage, or affect fact that mortgage, to extent not properly acknowledged,
was subject to avoidance by trustee of debtor-mortgagors' Chapter 13 estate in exercise of strong-arm powers; fact that
mortgage was noted on certificate of title did not correct any defects in mortgage itself. In re Price (Bkrtcy.S.D.Ohio, 03-14-
2007) 365 B.R. 794. Bankruptcy 2704; Mortgages 59
A lease of any interest in real property must be signed and acknowledged by the lessor; however, RC 5301.08 limits these
requirements to leases for a term of more than three years. Lithograph Bldg. Co. v. Watt (Ohio 1917) 96 Ohio St. 74, 117
N.E. 25, 15 Ohio Law Rep. 82.
Gas and oil lease for more than three years must be witnessed by two witnesses. Langmede v. Weaver (Ohio 1901) 65 Ohio
St. 17, 46 W.L.B. 40, 60 N.E. 992.
Leases under GC 431 (RC 123.17) are not required to be acknowledged. Emmitt v. Lee (Ohio 1893) 50 Ohio St. 662, 31
W.L.B. 3, 35 N.E. 794.
Lease for ninety-nine years must have two witnesses. Abbott v. Bosworth (Ohio 1881) 36 Ohio St. 605.
Where lease is not attested or acknowledged the defect is not cured or affected by the fourth section of the statute of frauds
and perjuries. Richardson v. Bates (Ohio 1858) 8 Ohio St. 257.
An answer to a petition which sets up that the indenture was not attested nor acknowledged by the lessor, and therefore did
not convey the term, and that the lessees were not indebted for any rent under the indenture, states facts sufficient to
constitute an equitable, and therefore a perfect, defense under the code. Richardson v. Bates (Ohio 1858) 8 Ohio St. 257.
Life lease must be acknowledged. Worthington's Lessee v. Young (Ohio 1834) 6 Ohio 313.
A lease for school lands is not valid unless acknowledged by the grantors before a judge or justice. (But see RC 5301.08).
Atkinson v Dailey, 2 O 213 (1825).
Statute of conveyances did not require stock redemption agreement, providing that corporation would enter into lease as
additional consideration for the transaction, to be in writing and signed by two witnesses, absent evidence that parties agreed
that corporation would rent property for any specific period of time. Genesis Respiratory Services, Inc. v. Hall (Ohio App. 4
Dist., 12-06-1994) 99 Ohio App.3d 23, 649 N.E.2d 1266. Frauds, Statute Of 56(6)
A lease which is executed and acknowledged by the lessor before a notary public is valid and enforceable notwithstanding
the fact that the lessee's signature on the lease was not similarly acknowledged before a notary public. Market Place of
Montgomery, Ltd. v. Beard (Hamilton 1981) 2 Ohio App.3d 291, 441 N.E.2d 835, 2 O.B.R. 322. Landlord And Tenant 25
Where in a written lease there was a failure of the lessors to acknowledge the lease and where the terms of the lease do not
otherwise require reformation, a reformation with respect to acknowledgment is not a prerequisite to granting equitable relief.
Grundstein v. Suburban Motor Freight (Franklin 1951) 92 Ohio App. 181, 107 N.E.2d 366, 62 Ohio Law Abs. 251, 62 Ohio
Law Abs. 252, 49 O.O. 312. Reformation Of Instruments 2
Where a lease is defective in that it has no attesting witnesses, as required by this section, the same legal consequence follows
as completely as if the instrument should be found defective in more than one respect. RKO Distributing Corp. v. Film
Center Realty Co. (Hamilton 1936) 53 Ohio App. 438, 5 N.E.2d 927, 22 Ohio Law Abs. 402, 6 O.O. 512.
This section is complied with where a lease is written on ten sheets of paper firmly bound together with rivets in such a
manner as to prevent any tampering therewith without leaving definite evidence of alteration, the ninth sheet containing part
of a sentence of the lease, followed by the signatures of the parties and witnesses and the beginning of the certificate of
acknowledgment which is concluded on the tenth sheet which also contains the acknowledging officer's signature. Rollman
& Sons Co. v. Alaska Realty Co. (Hamilton 1935) 52 Ohio App. 166, 3 N.E.2d 565, 20 Ohio Law Abs. 330, 4 O.O. 386.
Acknowledgment 29
A lease for one year with an option to continue the lease in force from year to year is an interest in real property that must be
acknowledged. People's Bldg. Loan & Sav. Co. v. McIntire (Ohio App. 1 Dist. 1921) 14 Ohio App. 28.
A subsequent acknowledgment placed upon a lease prior to notice of termination thereof will be considered by the court, but
a reacknowledgment placed thereon after receipt of such notice will be disregarded by the court. S. S. Kresge Co v Butte, 24
Abs 339 (CP, Jefferson 1937), affirmed by 136 OS 85, 23 NE(2d) 944 (1939).
A lease consisting of nineteen sheets of special typewritten paper, a plat and a manuscript cover, all bound together firmly by
brass rivets and paper staples which prevent detachment and addition of sheets without leaving a trace of mutilation, and
containing the body of the instrument on the first sixteen pages, an acknowledgment on the back of the sixteenth page by one
defendant and other acknowledgments of defendants on the last three sheets, constitutes one instrument of lease within the
meaning of the word “sheet” as used in GC 8510 (RC 5301.01), and in the absence of any fraud or mistake, is valid
thereunder. S. S. Kresge Co v Butte, 24 Abs 339 (CP, Jefferson 1937), affirmed by 136 OS 85, 23 NE(2d) 944 (1939).
Where fasteners employed to bind lease together are known and recognized as type of permanent fastening and page could
not be removed without mutilation of instrument, and acknowledgment was taken upon page or sheet upon which part of
instrument is written or printed in that testatum clause appears upon same page as certificate of acknowledgment, lease meets
requirements of this section. Ornstein v. Dozer (Franklin 1936) 21 Ohio Law Abs. 624.
The law does not require acknowledgment of a lease by the lessee. Fried v. Cohn-Goodman Co. (Cuyahoga 1928) 7 Ohio
Law Abs. 713, 28 Ohio Law Rep. 91.
A lease of real property for one year with option of five successive one-year renewals requires acknowledgment and
attestation, or lessee thereunder is tenant from year to year. Gelman v. Holland Furnace Co. (Lorain 1948) 92 N.E.2d 704, 59
Ohio Law Abs. 539.
A lease may be reformed by equity to conform with the requirements of this section so that the certificate of the
acknowledgment of the signatures thereto will be on the same sheet on which the lease proper is written where impression of
the parties was that such requisites had been observed. Wolf v. Dispatch Printing Co. (Franklin 1942) 43 N.E.2d 292, 36
Ohio Law Abs. 121, rehearing denied 44 N.E.2d 795, 36 Ohio Law Abs. 546.
A lease written on separate sheets of paper, fastened together by staples in a manuscript cover and bearing an
acknowledgment on a sheet separate from those upon which the instrument is written, complies with the requirements of this
section. J.J. Newberry Co. v. Marshall (C.C.A.6 (Ohio) 1942) 125 F.2d 973, 23 O.O. 87. Landlord And Tenant 22(2);
Specific Performance 64
11. ---- Parol evidence, leases
Where lease for years is made without any reservation in the lease itself of growing crops, parol evidence may be introduced
to show that the crop was growing on the land at the time the lease was made and was treated and considered as personalty
and not intended to be conveyed by the lease. Youmans v. Caldwell (Ohio 1854) 4 Ohio St. 71.
Leases for ninety-nine years may be sold on execution as chattels. Bisbee's Lessee v. Hall (Ohio 1828) 3 Ohio 449. Execution
34; Landlord And Tenant 70
A modification of a lease that concerns air conditioning and the expenses related thereto does not constitute “an interest in
land,” as used in RC 1335.04 and RC 5301.01, as such modification does not alter the fundamental possessory interests of
either the landlord or the tenant; hence, the modification may be accomplished without complying with the formalities of RC
1335.04 and RC 5301.01. Cuvier Press Club v. Fourth & Race St. Associates, Ltd. (Hamilton 1981) 1 Ohio App.3d 30, 439
N.E.2d 443, 1 O.B.R. 150.
Agreements which modify rental provisions and other terms of a lease and contain provision giving lessor option to cancel,
are not leases and do not have to conform with the statute of frauds and conveyances. Schofield v. John R. Thompson Co.
(C.C.A.6 (Ohio) 1940) 109 F.2d 432, 17 O.O. 75. Frauds, Statute Of 131(1)
There was no ambiguity in lease statement that tenants were to provide 30-day written notice of intent to surrender prior to
the expiration of the lease or a month-to-month tenancy would result, and there was also no ambiguity that the lease provided
for a three-month original term, and therefore, tenants were not entitled to present parol evidence on the issue of required
notice. Adair v. Landis Properties (Ohio App. 10 Dist., 09-11-2008) No. 08AP-139, 2008 -Ohio- 4593, 2008 WL 4174130,
Unreported. Evidence 450(4)
Unequivocal requirement of a closing 30 days after exercise of tenants' option to purchase created a conflict with equally
unequivocal provision allowing for credit against purchase price for rents paid “to the date of closing,” when no closing
occurred within 30 days and there was no agreement to extend closing; thus, court could reasonably take and rely on parol
evidence, including testimony of landlord and tenants, to determine what parties intended concerning extent of rent credit
against purchase price in that event. Lamme v. Pope (Ohio App. 2 Dist., Greene, 10-29-2004) No. 04CA42, 2004-Ohio-5831,
2004 WL 2453346, Unreported. Evidence 461(1)
A lease renewal agreement for an additional five-year term is not an independent transaction requiring compliance with the
formalities of RC 5301.01 where the lessor, as the drafter of the renewal agreement, does not exclude the reference to an
option to renew in the original lease. R.C.T., Inc v Consolidated Management, Inc, No. 99-L-191, 2001 WL 735771 (11th
Dist Ct App, Lake, 6-29-01).
12. ---- Parol evidence, deeds
A deed is presumed to have been executed and delivered as of the date it bears, but this presumption is rebuttable, and it is
well settled that the true date may be established by parol testimony. Walser v. Farmers' Trust Co. of Indianapolis, Ind. (Ohio
1933) 126 Ohio St. 367, 185 N.E. 535, 37 Ohio Law Rep. 561.
Growing crops are generally considered as personalty, and parol evidence may be produced to show that the parties, by their
words or behavior, reserved such crops from the operation of a deed for the land whereon it grows, and evidence of such
understanding does not contradict the deed. Baker v. Jordan (Ohio 1854) 3 Ohio St. 438.
Clear proof ought to be made to show that an acknowledged and recorded deed was not intended to pass title. Mitchell's
Lessee v. Ryan (Ohio 1854) 3 Ohio St. 377.
Parol evidence is admissible to show that sheriff's deed does not cover all land claimed under it. Longworth's Lessee v. Bank
of U.S. (Ohio 1834) 6 Ohio 536.
Title never passed by parol in Ohio. Lindsley's Lessee v. Coats (Ohio 1823) 1 Ohio 243.
In the case of ambiguity as to the meaning of a quit claim deed such as in the designation of a grantee, extrinsic evidence is
admissible to show surrounding circumstances and the parties' intentions at the time. Thomas v. City of Columbus (Franklin
1987) 39 Ohio App.3d 53, 528 N.E.2d 1274.
Under Ohio law, extrinsic evidence is admissible to illuminate intent of parties if terms of deed are ambiguous, but if
language of deed is unambiguous, then its interpretation is question of law to be resolved by reviewing court without resort to
extrinsic evidence. Belville Min. Co. v. U.S. (C.A.6 (Ohio) 1993) 999 F.2d 989. Deeds 110; Evidence 450(3)
Acceptance of an offer to purchase buildings on leased property, where lease did not purport to convey the buildings apart
from the land, created only an executory contract of sale, which, although satisfying the statute of frauds as to such contracts,
was wholly ineffective as a conveyance. Crile v. Commissioner of Internal Revenue (C.C.A. 6 1932) 55 F.2d 804, certiorari
denied 53 S.Ct. 7, 287 U.S. 600, 77 L.Ed. 523.
13. ---- Municipal corporations, deeds
A deed of land owned by a city, which it has power to convey, signed by the city clerk, sealed with his private scroll seal and
his official seal as city clerk, and made under the authority of an ordinance in form authorizing him to execute “a proper deed
of conveyance, under the corporate seal of said city,” is ineffectual to convey to a purchaser the city's title to such land. City
of Tiffin v. Shawhan (Ohio 1885) 43 Ohio St. 178, 13 W.L.B. 641, 1 N.E. 581. Deeds 44; Municipal Corporations 225(5)
RC 5301.01 (former RS 4106), requiring that every deed shall be signed and sealed by the grantor or maker, does not apply
to deeds made by municipal corporations, and their deeds, if executed according to the mode prevailing at common law, are
sufficient to pass title. Young v. Commissioners of Mahoning County (C.C.N.D.Ohio 1892) 53 F. 895.
14. ---- Mistake or defect; cure, deeds
A deed, although defective and ineffectual to pass legal title because no grantee was named therein, is valid in equity as a
contract by which the grantor became bound to convey the premises to the vendee or his assigns. Holden v. Belmont (Ohio
1877) 32 Ohio St. 585.
If grantee has had possession of land for several years under a deed containing an erroneous description, a court will on clear
proof correct the mistake. Broadwell v. Phillips (Ohio 1876) 30 Ohio St. 255.
When the reformation of an instrument is sought on the ground of mistake, the mistake must be clearly made out by proofs
entirely satisfactory. Potter v. Potter (Ohio 1875) 27 Ohio St. 84.
Deed takes effect only on legal execution and delivery to grantee, but an imperfectly executed deed may operate as a contract
of sale and create equitable estate in purchaser. Williams v. Sprigg (Ohio 1856) 6 Ohio St. 585.
No person who would be bound by it when reformed can found an equity upon defects in a deed. Williams v. First
Presbyterian Society in Cincinnati (Ohio 1853) 1 Ohio St. 478.
Where executors convey under defective order of court, such conveyance cannot be aided in equity. Tiernan v. Beam (Ohio
1826) 2 Ohio 383, 15 Am.Dec. 557.
Insured mortgagee was limited to contractual remedies found in its title insurance policy, which provided that insurer would
indemnify insured as to third party claims against title, and therefore, insured's claim against insurer for agent's alleged
negligence in preparing mortgagor's deed, which deed contained a defect that caused a failure to detect insured's lien on the
title property, was precluded; insurer's duty to indemnify was not triggered. First Merit Bank, NA v. Guarantee Title & Trust
Co. (Ohio App. 9 Dist., Summit, 06-30-2006) No. 22894, 2006-Ohio-3333, 2006 WL 1791148, Unreported, appeal not
allowed 111 Ohio St.3d 1472, 855 N.E.2d 1259, 2006-Ohio-5625. Insurance 1654; Insurance 3541
There was no “mutual mistake” regarding an access easement that warranted reformation of vendors' deed to purchasers by
eliminating easement described in deed, where vendor received incorrect information from county that easement was
required before approval of deed, survey incorrectly located the easement, but purchaser had no involvement with obtaining
the information from the county. Carpenter v. Ridenour (Ohio App. 5 Dist., Fairfield, 08-29-2005) No. 04CA00064, 2005-
Ohio-4709, 2005 WL 2174615, Unreported. Reformation Of Instruments 19(2)
Purchasers who bought 21.22 acres from vendors, including a house, had no contractual right to additional 2.2-acre tract that
contained well for the house, despite purchasers' contention that they believed they were purchasing 24.6 acres and would not
have agreed to purchase 21.22; purchasers accepted numerous documents at closing that put them on notice that tract being
purchased contained 21.22 acres, and doctrine of merger by deed prevented purchasers from seeking relief based on their
prior understanding of the transaction. Greathouse v. Ross (Ohio App. 5 Dist., Muskingum, 12-17-2004) No. CT2004-0009,
2004-Ohio-6989, 2004 WL 2955178, Unreported. Deeds 94; Vendor And Purchaser 65(1)
Settlement agreement in which purchaser agreed to dismiss action against vendor and neighbor and return deed of property in
exchange for a refund of purchase price, was clear, unambiguous and enforceable, despite purchaser's alleged mistake in that
he did not understand that he was agreeing to dismiss claims against neighbor; purchaser agreed in open court to dismiss “this
action,” meaning the entire action, and gave no indication that he believed that his claims against neighbor would remain
following the settlement. Selvage v. Emnett (Ohio App. 4 Dist., 02-24-2009) 2009 -Ohio- 940, 2009 WL 522869.
In action by plaintiff prospective purchaser of commercial building against defendant prospective vendor for breach of
contract and specific performance, prospective vendor's assertion of mutual mistake, i.e., that parties had been unaware that
dining room for restaurant in adjoining building owned by prospective vendor encroached on parcel on which the building
plaintiff was seeking to purchase was located, made parol evidence admissible, in order to learn what the intentions of the
parties were and what the underlying facts were. Rylee Ltd. v. Izzard Family Partnership (Ohio App. 3 Dist., 09-08-2008)
178 Ohio App.3d 172, 2008 -Ohio- 4506. Evidence 433(8)
With respect to contract for sale of commercial building to plaintiff prospective purchaser, fact that dining room for
restaurant in adjoining building owned by defendant prospective vendor encroached on parcel on which the building plaintiff
was seeking to purchase was located constituted a mutual mistake, as basis for rescission of contract for sale; neither party
was aware of the encroachment when the contract was signed, both parties admitted that reasonable inspection would not
have revealed the encroachment, and the mistake was material to the contract because it concerned exactly what the contract
was covering. Rylee Ltd. v. Izzard Family Partnership (Ohio App. 3 Dist., 09-08-2008) 178 Ohio App.3d 172, 2008 -Ohio-
4506. Vendor and Purchaser 31
Rescission of contract for sale of commercial building, based on unilateral mistake, was warranted; prospective vendor had
been unaware that dining room for restaurant in adjoining building owned by prospective vendor encroached on parcel on
which the building prospective purchaser was seeking to buy was located, the mistake was realized before the scheduled
closing, and the positions of the parties had not changed in such a way that would prevent the return of the parties to their
original positions. Rylee Ltd. v. Izzard Family Partnership (Ohio App. 3 Dist., 09-08-2008) 178 Ohio App.3d 172, 2008
-Ohio- 4506. Vendor and Purchaser 31
Claim of purchaser of real property against copurchaser alleging that copurchaser attempted to “squeeze him out” of real
estate purchase by failing to properly include purchaser's name on certain documents did not state cause of action for fraud as
it did not allege that copurchaser made false statements with knowledge that they were false or that purchaser relied on
copurchaser's misrepresentations. Garofalo v. Chicago Title Ins. Co. (Ohio App. 8 Dist., 05-23-1995) 104 Ohio App.3d 95,
661 N.E.2d 218. Fraud 45; Fraud 46
Neighboring property owners were entitled to reformation of deed based on mutual mistake for failing to reflect
ingress/egress easement over property, where owner's chief operating officer, who was in charge of obtaining property,
admitted that owner granted easement to neighboring property owners, and owner consented to neighboring property owners'
paving driveway within easement. Phoenix Concrete, Inc. v. Reserve-Creekway, Inc. (Ohio App. 10 Dist., 01-24-1995) 100
Ohio App.3d 397, 654 N.E.2d 155. Reformation Of Instruments 19(2)
To reform instrument, clear and convincing proof must show that parties made mutual mistake. Phoenix Concrete, Inc. v.
Reserve-Creekway, Inc. (Ohio App. 10 Dist., 01-24-1995) 100 Ohio App.3d 397, 654 N.E.2d 155. Reformation Of
Instruments 45(1)
“Reformation” is equitable remedy whereby court modifies instrument which, due to mutual mistake on part of original
parties to instrument, does not evince actual intention of those parties. Phoenix Concrete, Inc. v. Reserve-Creekway, Inc.
(Ohio App. 10 Dist., 01-24-1995) 100 Ohio App.3d 397, 654 N.E.2d 155. Reformation Of Instruments 1; Reformation Of
Instruments 19(1)
The probate division of the court of common pleas is without jurisdiction either to reform a deed executed prior to an owner's
death or to order a series of conveyances to correct alleged defects in that deed. Oncu v. Bell (Medina 1976) 49 Ohio App.2d
109, 359 N.E.2d 712, 3 O.O.3d 175.
Where a warranty deed for three platted lots, after being signed by the grantors and before delivery, is amended by the
scrivener by interlineation in the deed description of the words, “together with the east half (1/2) of the vacated alley lying
west of said lots,” but the grantors had previously divested themselves of all title to the vacated alley, such amendment is not
a part of the conveyance of land but constitutes an enforceable contract of warranty of the described portion of the vacated
alley by and between the grantors and the grantee and is enforceable as such provided it was authorized, consented to or
ratified by the grantors or they are estopped to deny its validity. Naso v. Daniels (Hancock 1964) 8 Ohio App.2d 42, 220
N.E.2d 829, 37 O.O.2d 48.
Where, under an oral contract for the sale of real property, the vendor delivers a deed which is defective in that the grantee is
not named in the acknowledgment clause, the only proper proceeding to remedy such a defect is an action to quiet title.
Miller v. Risman (Cuyahoga 1964) 2 Ohio App.2d 306, 213 N.E.2d 185, 94 Ohio Law Abs. 368, 31 O.O.2d 354.
Evidence was sufficient to support finding that purchaser did not intend to purchase, and vendors did not intend to sell,
portion of vendors' land upon which vendors' building and driveway sat, and thus vendors were entitled to reformation of
deed based upon mutual mistake; vendors had pointed out the boundary line to purchaser before purchase, parties did not
negotiate the building or driveway as part of the purchase price, and purchaser made no claim to the land until nearly 20
years later, when he had the land surveyed. Amsbary v. Brumfield (Ohio App. 4 Dist., 06-19-2008) 177 Ohio App.3d 121,
2008-Ohio-3183. Reformation Of Instruments 19(1)
A defectively executed lease for a term of five years upon monthly rental creates a tenancy in the lessee from month to
month. Wineburgh v. Toledo Corp. (Ohio 1932) 125 Ohio St. 219, 181 N.E. 20, 36 Ohio Law Rep. 307. Frauds, Statute Of
123(3); Landlord And Tenant 115(1)
An instrument intended as a deed, but defectively executed by reason of the signature of the grantors having only one witness
and not being acknowledged, may be treated as a valid contract for the conveyance of the real estate and may be enforced by
suit for specific performance. Baltimore & O.R. Co. v. Village of Oak Hill (Jackson 1927) 25 Ohio App. 301, 157 N.E. 817,
5 Ohio Law Abs. 777.
The equitable relief of cancellation and rescission of a deed conveying real estate will not be granted for a mere breach of
contract. City of Cleveland v. Herron (Ohio 1921) 102 Ohio St. 218, 131 N.E. 489, 19 Ohio Law Rep. 57, 19 Ohio Law Rep.
59. Cancellation Of Instruments 3
Courts of equity will not permit mistakes, whether innocently made or not, to work injustice and bring results contrary to the
intention of the parties; and when one through mistake of the scrivener of a deed obtains the legal title of property, which in
justice belongs to another, a court of equity will impress upon the property a trust in favor of the equitable owner. Barnes v.
Christy (Ohio 1921) 102 Ohio St. 160, 131 N.E. 352, 19 Ohio Law Rep. 6. Trusts 93
While deed did not in legal effect operate to transfer title held by grantor to premises, it did operate as contract by him to
convey premises to grantee. Schmidt v. Schopmeier (Ohio 1917) 96 Ohio St. 586, 118 N.E. 1085, 15 Ohio Law Rep. 84, 15
Ohio Law Rep. 106. Vendor And Purchaser 29
Where contract calls for certain number of acres and deed delivered in performance describes by metes and bounds and also
states number of acres, grantee cannot recover though less number of acres than deed and contract stated. Brumbaugh v.
Chapman (Ohio 1887) 45 Ohio St. 368, 18 W.L.B. 397, 13 N.E. 584.
Mistake in name of a party if clearly apparent from face of instrument, does not affect its validity. Dodd v. Bartholomew
(Ohio 1886) 44 Ohio St. 171, 15 W.L.B. 276, 5 N.E. 866.
An instrument purporting to be a deed but that contains only one subscribing witness is not executed in accordance with law;
therefore, it does not have the effect and force of a deed and is not a deed. Mateer v. Croft (Morrow 1915) 29 Ohio C.D. 9, 26
Ohio C.C.(N.S.) 182, 6 Ohio App. 13.
Under Ohio law, equitable relief of cancellation and rescission of a deed conveying real estate will not be granted for mere
breach of contract and court should not grant relief by cancellation of a contract when the plaintiff may obtain adequate and
complete relief by ordinary legal remedies. Dartron Corp. v. Uniroyal Chemical Co., Inc. (N.D.Ohio, 02-22-1996) 917
F.Supp. 1173. Cancellation Of Instruments 10; Vendor And Purchaser 110
A deed defective as a conveyance because of a defective acknowledgment, but otherwise the instrument of parties having
every intention of conveying for a valuable and sufficient consideration property to the defendant who performed fully, is
good as a contract for conveyance, and equity, considering that done which ought to be done, will decree title in the
defendant and deem the deed corrected according to the manifest intention of the parties. Spencer v. Fry (Ohio Com.Pl. 1938)
2 Ohio Supp. 286, 28 Ohio Law Abs. 331, 14 O.O. 77.
15. Easements and licenses
A written license, without seal and unacknowledged, to enter upon and imbed water pipes in the land of another, with
privilege to enter and repair them, creates no interest in, nor encumbrance upon, the land such as will disable the owner
thereof from making a good and sufficient deed conveying a good title thereto. Wilkins v. Irvine (Ohio 1877) 33 Ohio St.
138. Licenses 58(2); Vendor And Purchaser 135(1); Waters And Water Courses 168
Evidence was sufficient to support finding that landowner did not acquire an implied, or constructive, easement in
neighboring lot in which he and neighbors held an ownership interest, although landowner, who leased land for five year
period prior to acquiring land and ownership interest in lot, had been driving through and parking on lot for years; there was
evidence that use for five years was not long continued, and there was evidence that landowner's predecessors only
occasionally used lot. Sweet v. Caudill (Ohio App. 11 Dist., Portage, 03-03-2006) No. 2004-P-0095, 2006-Ohio-1009, 2006
WL 533491, Unreported. Easements 36(3)
Evidence was sufficient to support finding that landowner did not acquire an easement appurtenant in neighboring parcel due
to operation of the county subdivision regulations which generally required that all platted lots have such actual physical
access as reasonably necessary to enjoy and use the lots and their improvements, despite testimony that it was difficult for
landowner and his wife to go up and down embankment; county planning commission director established that only one lot
in area had been considered “landlocked,” and it was not landowner's lot. Sweet v. Caudill (Ohio App. 11 Dist., Portage, 03-
03-2006) No. 2004-P-0095, 2006-Ohio-1009, 2006 WL 533491, Unreported. Easements 18(1)
Equity did not require that purchasers who bought 21.22 acres from vendors, including a house, receive fee interest in
additional 2.2-acre tract containing well for the house; purchasers' right to use the well was not disputed, and could have been
protected with a license, an implied easement, or by the transfer of a smaller piece of the property. Greathouse v. Ross (Ohio
App. 5 Dist., Muskingum, 12-17-2004) No. CT2004-0009, 2004-Ohio-6989, 2004 WL 2955178, Unreported. Vendor And
Purchaser 65(1)
Under crossing agreement between easement owner and oil company, owner was not entitled to recover attorney fees
incurred in connection with prosecution of action for removal of oil pipeline; agreement contemplated that indemnity was
available only for “suits, costs and expenses” brought by a third party and not for a dispute between parties to agreement
concerning meaning of their contract. American Premier Underwriters, Inc. v. Marathon Ashland Pipeline, L.L.C. (Ohio App.
3 Dist., Mercer, 05-03-2004) No. 10-03-12, 2004-Ohio-2222, 2004 WL 937316, Unreported, appeal not allowed 103 Ohio
St.3d 1463, 815 N.E.2d 679, 2004-Ohio-5056. Costs 194.32
Easement that reserved a “permanent and perpetual easement in gross” for all “existing wire and pipe facilities” gave
easement owner an exclusive pipeline easement, where oil pipeline existed at time of transfer of underlying real estate.
American Premier Underwriters, Inc. v. Marathon Ashland Pipeline, L.L.C. (Ohio App. 3 Dist., Mercer, 05-03-2004) No. 10-
03-12, 2004-Ohio-2222, 2004 WL 937316, Unreported, appeal not allowed 103 Ohio St.3d 1463, 815 N.E.2d 679, 2004-
Ohio-5056. Easements 3(1)
Owners of disputed property did not obtain a prescriptive easement across the driveway of western property owner, where
western property owner granted other owners permission to use driveway. Martin v. Schaad (Ohio App. 4 Dist., Washington,
01-08-2004) No. 02CA65, 2004-Ohio-124, 2004 WL 57408, Unreported. Easements 8(2)
A strip of land between two parcels used as a common driveway constituted an implied easement, where the strip had been
used as a common driveway by all of the previous owners of the two parcels since at least 1957, strip was the only driveway
either party had ever used, servient tenants knew that the two parcels shared a common drive even before they bought their
parcel, and three years after servient tenants purchased their parcel, they were still allowing land to be used as a common
drive for both parcels. Mapes v. Smith (Ohio App. 8 Dist., Cuyahoga, 01-30-2003) No. 81065, 2003-Ohio-428, 2003 WL
194866, Unreported, appeal not allowed 99 Ohio St.3d 1515, 792 N.E.2d 201, 2003-Ohio-3957. Easements 17(1)
Law relating to easements by implication requires consideration of not only what the owners intended at the time they sever
their unity of ownership, but also what occurs between subsequent owners of the dominant and servient estates still burdened
by an alleged easement by implication. Mapes v. Smith (Ohio App. 8 Dist., Cuyahoga, 01-30-2003) No. 81065, 2003-Ohio-
428, 2003 WL 194866, Unreported, appeal not allowed 99 Ohio St.3d 1515, 792 N.E.2d 201, 2003-Ohio-3957. Easements
15.1
Landowners had reasonable likelihood of success on merits of claim that owner of property, a limited partnership, did not
properly execute its grant of drainage easement in dedication of plat, for purposes of determining whether to preliminarily
enjoin adjacent property owner from entering onto landowners' property based on easement. Back v. Faith Properties, LLC
(Ohio App. 12 Dist., Butler, 11-12-2002) No. CA2001-12-285, 2002-Ohio-6107, 2002 WL 31502077, Unreported. Injunction
138.31
A provision in a sales contract pertaining to the conveyance of an easement was not extinguished at the time the deed was
conveyed, and the “merger by deed” doctrine did not apply to preclude trial court from considering sales contract and deed
together to ascertain the parties' intent. Shah v. Smith (Ohio App. 1 Dist., 02-20-2009) 181 Ohio App.3d 264, 908 N.E.2d
983, 2009 -Ohio- 743. Deeds 94
Vendors and purchasers intended to be bound by the language in their real estate sales contract that reserved a driveway
easement for vendors, who retained adjacent property, such that doctrine of merger by deed did not apply to preclude
consideration of the contract, which demonstrated that the easement ran with the land; provision in real estate sales contract
which specifically referred to the deed stated that it was free of all easements “except as otherwise provided herein,” the
contract stated that the parties would be bound by “restrictions of record” and by matters “specifically permitted in this
agreement,” and the deed referred to the driveway easement. Shah v. Smith (Ohio App. 1 Dist., 02-20-2009) 181 Ohio
App.3d 264, 908 N.E.2d 983, 2009 -Ohio- 743. Deeds 94
Although doctrine of “merger by ownership” applied to extinguish driveway easement while landowners owned both servient
and dominant parcels of property, it did not apply to extinguish easement after landowners sold one parcel; the easement ran
with land, consistent with parties' intent as expressed in deed. Shah v. Smith (Ohio App. 1 Dist., 02-20-2009) 181 Ohio
App.3d 264, 908 N.E.2d 983, 2009 -Ohio- 743. Easements 27
Doctrine of “merger by ownership” provides that a servitude may not be impressed upon an estate by another estate when
both estates are owned by the same person; thus, an easement is extinguished by merger when the dominant and servient
tenements come into the ownership of the same party. Shah v. Smith (Ohio App. 1 Dist., 02-20-2009) 181 Ohio App.3d 264,
908 N.E.2d 983, 2009 -Ohio- 743. Easements 27
Deed providing that conveyance of described property was together with easement over adjacent property, as described in
grantor's earlier deed transferring adjacent property, which “provides ingress and egress to and from the above described
property” to adjacent road, and “right to keep and maintain a roadway,” described property easement rights over adjacent
property which included right to keep and maintain roadway in order to facilitate “ingress and egress to and from the
property”; contours of roadway right over thirty-foot-wide easement were defined by what was reasonable under
circumstances. Apel v. Katz (Ohio, 08-19-1998) 83 Ohio St.3d 11, 697 N.E.2d 600, 1998-Ohio-420, reconsideration denied
83 Ohio St.3d 1452, 700 N.E.2d 334. Easements 42
“Dedication” is voluntary and intentional gift or donation of land, or of easement or interest therein for some public use,
made by owner of land, and accepted for such use, by or on behalf of public. Snyder v. Monroe Twp. Trustees (Ohio App. 2
Dist., 04-19-1996) 110 Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed 77 Ohio St.3d 1417, 670 N.E.2d 1004.
Dedication 1
Deed, which purported to convey easement over grantors' property to township trustees “for purposes of ingress and egress to
the proposed park area,” adequately demonstrated grantors' intent to dedicate easement for public use. Snyder v. Monroe
Twp. Trustees (Ohio App. 2 Dist., 04-19-1996) 110 Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed 77 Ohio St.3d
1417, 670 N.E.2d 1004. Dedication 15
Dedication need not involve deed or other particular form of conveyance. Snyder v. Monroe Twp. Trustees (Ohio App. 2
Dedication 16.1
Conveyance intended to benefit only small portion of public does not constitute “dedication” of property for public use.
Snyder v. Monroe Twp. Trustees (Ohio App. 2 Dist., 04-19-1996) 110 Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed
77 Ohio St.3d 1417, 670 N.E.2d 1004. Dedication 17
Acceptance of private property for public use may arise implicitly from public's utilization of such property, with owner's
silent acquiescence, for time sufficient to warrant inference of intent to dedicate and to constitute an acceptance. Snyder v.
Monroe Twp. Trustees (Ohio App. 2 Dist., 04-19-1996) 110 Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed 77 Ohio
St.3d 1417, 670 N.E.2d 1004. Dedication 37
Dedication of land creates easement for public use, if dedication is at common law, or determinable or qualified fee in
municipality or other public agency, in case of statutory dedication. Snyder v. Monroe Twp. Trustees (Ohio App. 2 Dist., 04-
19-1996) 110 Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed 77 Ohio St.3d 1417, 670 N.E.2d 1004. Dedication 53;
Dedication 54
“Easement appurtenant” arises only when its holder owns dominant estate at time of creation of easement. Snyder v. Monroe
1417, 670 N.E.2d 1004. Easements 3(1)
Original conveyance of easement appurtenant was unenforceable where original grantees did not own dominant estate at time
of conveyance and never obtained ownership of estate. Snyder v. Monroe Twp. Trustees (Ohio App. 2 Dist., 04-19-1996) 110
Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed 77 Ohio St.3d 1417, 670 N.E.2d 1004. Easements 12(1)
To demonstrate abandonment of easement, owner of servient estate must establish nonuse of easement and intent to abandon.
Snyder v. Monroe Twp. Trustees (Ohio App. 2 Dist., 04-19-1996) 110 Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed
77 Ohio St.3d 1417, 670 N.E.2d 1004. Easements 30(1)
Nonuse of easement for extended time, standing alone, is not always sufficient to signal intent to abandon. Snyder v. Monroe
1417, 670 N.E.2d 1004. Easements 30(1)
Intent to abandon easement must be demonstrated by unequivocal and decisive acts inconsistent with continued use and
enjoyment of easement. Snyder v. Monroe Twp. Trustees (Ohio App. 2 Dist., 04-19-1996) 110 Ohio App.3d 443, 674 N.E.2d
741, appeal not allowed 77 Ohio St.3d 1417, 670 N.E.2d 1004. Easements 30(1)
Nonuse of easement which purported to grant ingress and egress from park did not evince intent to abandon easement where
surrounding residential lots and streets needed to be developed first, pursuant to logical subdivision development. Snyder v.
Monroe Twp. Trustees (Ohio App. 2 Dist., 04-19-1996) 110 Ohio App.3d 443, 674 N.E.2d 741, appeal not allowed 77 Ohio
St.3d 1417, 670 N.E.2d 1004. Easements 30(1)
Purpose of easement appurtenant, to provide ingress and egress from park, did not become impossible to accomplish simply
because grantors failed to convey easement to owner of dominant estate; although easement's validity may have been
adversely affected by improper conveyance, its purpose remained viable. Snyder v. Monroe Twp. Trustees (Ohio App. 2
Easements 51
Where the plaintiff obtained title to a railroad right-of-way by quitclaim deed reciting that the conveyance was subject to
easements of record or otherwise affecting the land, and to facts which a personal inspection or accurate survey would
disclose, and the plaintiff knew there were power lines on the property when he obtained title, he took title subject to licenses
coupled with an interest amounting to easements even though the defendant's power lines were constructed and maintained
under agreements with the predecessor railroad company which did not meet the formal requirements for express grants of
easements. Kamenar R.R. Salvage, Inc. v. Ohio Edison Co. (Union 1992) 79 Ohio App.3d 685, 607 N.E.2d 1108.
The installation of artificial drain lines to collect and drain both surface water and subsurface water extracted by a sump
pump into a neighbor's land and the grading and landscaping of the parcel changing the surface drainage toward a neighbor's
land is an alteration of the water flow and is an unreasonable use of the land. Len Ran, Inc. v. Mellott (Portage 1990) 63 Ohio
App.3d 123, 577 N.E.2d 1185.
An easement of ingress and egress does not grant the owners of the dominant estate the right to divert water through
manmade drain lines onto the servient estate. Len Ran, Inc. v. Mellott (Portage 1990) 63 Ohio App.3d 123, 577 N.E.2d 1185.
A property owner may not seek to enforce easements granting drainage rights to property across the street in a residential
subdivision while the deed in question, although obtained from the same grantor, does not contain such an easement; a
grantee may not claim to be a third-party beneficiary of easements granted to “contiguous” property owners as such
“contiguous” property owners are strangers to the contract, and the grantee claiming third-party beneficiary rights has not
shown the intent of the easements to benefit him. Len Ran, Inc. v. Mellott (Portage 1990) 63 Ohio App.3d 123, 577 N.E.2d
1185.
A single deed or instrument of conveyance may create an estate in land in one person and an easement in another. Zurn
Industries, Inc. v. Lawyers Title Ins. Corp. (Hamilton 1986) 33 Ohio App.3d 59, 514 N.E.2d 447. Easements 14(3)
Burden of proof is upon the party claiming the implied easement to establish that such easement was apparent to the party
sought to be charged with knowledge of it. Campbell v. Great Miami Aerie No. 2309, Fraternal Order of Eagles (Ohio, 12-
31-1984) 15 Ohio St.3d 79, 472 N.E.2d 711, 15 O.B.R. 182.
In absence of evidence which would support finding that plaintiff landowner, at closing, had actual knowledge of sewage
flow from defendant landowner's parcel to the septic tank located on his property, and since evidence adduced did not show
such an apparency of the burden, nor that plaintiff should have been aware of the existence of sewage flow to his property,
particularly in light of the fact that a number of individuals, who had various degrees of expertise in the matter, did not
recognize the problem either, affirmative defense of implied easement was not available in trespass action. Campbell v. Great
Miami Aerie No. 2309, Fraternal Order of Eagles (Ohio, 12-31-1984) 15 Ohio St.3d 79, 472 N.E.2d 711, 15 O.B.R. 182.
The extent of an easement created by conveyance is fixed by the terms of the grant and the circumstances surrounding the
transaction. (See also Hollosy v Gershkowitz, 88 App 198 (1950).) State ex rel. Goldsberry v. Weir (Franklin 1978) 60 Ohio
App.2d 149, 395 N.E.2d 901, 14 O.O.3d 114. Easements 42
Where a pipeline easement is created by express grant with a description that identifies the servient estate by adjoiners and
where the grantee of such easement enters upon, constructs, and maintains a pipeline under it, notwithstanding that the
easement does not contain a metes and bounds description, the description of the easement is sufficient. Roebuck v.
Columbia Gas Transmission Corp. (Shelby 1977) 57 Ohio App.2d 217, 386 N.E.2d 1363, 11 O.O.3d 256. Gas 9
Where a contract for the sale of real estate includes language to the effect that grantors shall have the right to establish
driveways as necessary for ingress and egress over the property to be conveyed so that such driveways may be used to reach
such grantors' remaining parcel not conveyed, and such provision through mutual mistake is not embodied in the deed
conveying such real estate, reformation shall lie for parties claiming under and in privity with the original grantors. Berardi v.
Ohio Turnpike Commission (Cuyahoga 1965) 1 Ohio App.2d 365, 205 N.E.2d 23, 30 O.O.2d 385.
Easement is right without profit, created by grant or prescription, which owner of one estate may exercise in or over estate of
another for benefit of former and can only be created by grant, or by prescriptive title. Yeager v. Tuning (Ohio 1908) 79 Ohio
St. 121, 86 N.E. 657, 128 Am.St.Rep. 679, 6 Ohio Law Rep. 554. Easements 1
Where a duly executed and acknowledged contract grants a gas company the right to lay and maintain a pipeline across the
grantor's land in consideration of $1 and contains a covenant that the gas company will furnish free gas to the grantor's
residence, the covenant runs with the land even though the words “assigns” or “heirs and assigns” are not used. Johnson v.
American Gas Co. (Ohio App. 1917) 30 Ohio C.D. 404, 8 Ohio App. 124, 28 Ohio C.A. 513.
Amended Ohio statute, providing that a mortgage accepted for recording shall conclusively be presumed to have been
properly executed, could not be applied retroactively to adversary proceeding brought by Chapter 7 trustee to avoid
mortgages in exercise of his strong-arm powers; trustee's rights vested when debtors filed their Chapter 7 petition, which was
prior to the effective date of the amended statute, and statute was unconstitutionally retroactive if it impaired vested rights. In
re Baker (Bkrtcy.N.D.Ohio, 10-08-2003) 300 B.R. 298. Bankruptcy 2705
16. ---- Undue influence; duress; fraud, deeds
One who obtains deed by fraud is estopped to set up defective acknowledgment. Wilson v. Hicks (Ohio 1884) 40 Ohio St.
418.
Where a father conveys property to his infant son for the purpose of defrauding creditors, the son holds as a trustee and he
may not disaffirm a later reconveyance to his father who sold it to a creditor. Starr v. Wright (Ohio 1870) 20 Ohio St. 97.
Prior to act of March 19, 1887, a deed from husband to wife without consideration and to defraud creditors was absolutely
void and did not prevent judgment liens from attaching. Fowler v. Trebein (Ohio 1866) 16 Ohio St. 493, 91 Am.Dec. 95.
Where grantor conveys to his creditor, transfer is good unless fraudulent or to create trust for grantor. Webb's Adm'r v. Roff
(Ohio 1859) 9 Ohio St. 430.
Where deed delivered in escrow is fraudulently obtained by grantee, who thereupon conveys to bona fide purchaser for value,
bona fide holder obtains no title. Ogden v. Ogden (Ohio 1854) 4 Ohio St. 182.
A genuine issue of material fact existed as to whether father was susceptible to undue influence at the time he executed deeds
transferring property to son, precluding summary judgment in executor's action challenging the validity of the deed transfers.
Grimes v. Grimes (Ohio App. 4 Dist., 06-24-2009) No. 08CA35, 2009 -Ohio- 3126, 2009 WL 1830761, Unreported.
Judgment 181(15.1)
Evidence was insufficient to support finding that tenant was fraudulently induced to sign lease amendment, where tenant
failed to allege that landlord made any affirmative misrepresentation to induce him to sign lease amendment, but claimed that
landlord induced tenant to sign lease amendment by failing to disclose that tenant's rights against eviction under former lease
would be eviscerated by lease amendment, and tenant failed to explain source of landlord's alleged duty to disclose specific
terms of lease amendment. Showe Management Corp. v. Kerr (Ohio App. 8 Dist., Cuyahoga, 05-20-2004) No. 83406, 2004-
Ohio-2557, 2004 WL 1118819, Unreported. Landlord And Tenant 33
Transferor's assertion of undue influence was insufficient to shift burden of proof to establish validity of transfer of real
property to transferee; mother had burden to prove that her inter vivos gift of real property to her daughter was brought about
by undue influence. Kay v. Schiffer (Ohio App. 8 Dist., Cuyahoga, 12-18-2003) No. 82721, 2003-Ohio-6913, 2003 WL
22976537, Unreported. Gifts 47(3)
A default judgment for failure to answer against a debtor who owns substantial interest in three corporations which are
deeded by an entity other than the debtor to a third party in an alleged attempt to place the property out of a creditor's reach is
void because a trial court cannot enter a default judgment against an individual who does not, and cannot, deed the properties.
Calfee, Halter & Griswold v. Khayat (Ohio App. 8 Dist., Cuyahoga, 07-13-1995) No. 67650, No. 68266, 1995 WL 415166,
Unreported.
A real estate agent and property owner have a duty to disclose material facts on which a buyer would rely in forming a
decision whether to purchase real estate, and an “as is” clause in a real estate contract does not protect the agent and owner
from an action based upon positive misrepresentation or concealment when the agent tells the buyer that the basement is dry
when he knows this to be untrue. Schwebach v. Dorr (Ohio App. 7 Dist., Columbiana, 06-29-1995) No. 94-C-38, 1995 WL
387613, Unreported.
Prospective vendor of duplex actually relied, as element of fraud claim relating to prospective purchaser's conduct in
recording deed, on prospective purchaser's representation that she needed deed from prospective vendor so she could get a
loan for the purchase and would use deed for such purpose, though prospective vendor had believed that prospective
purchaser would not be able to record the deed because he had completed only the top half of it and the document had not
been witnessed; it was not inconsistent for prospective vendor to rely on the representation but proceed cautiously by taking a
measure he believed would protect him if prospective purchaser was untrustworthy. Langford v. Sloan (Ohio App. 2 Dist.,
07-15-2005) 162 Ohio App.3d 263, 833 N.E.2d 331, 2005-Ohio-3735. Fraud 20
Representation by prospective purchaser of duplex to prospective vendor, that she needed a deed from prospective vendor so
she could get a loan for the purchase and would use the deed for such purpose, was a promise concerning future action which
prospective purchaser had no intention of keeping when the promise was made, as exception to general rule barring an action
for fraud on basis of promises about future performance; prospective purchaser's intent to break the promise could be inferred
from her recording of deed immediately after prospective vendor signed top part of it, without prospective purchaser even
attempting to obtain a loan. Langford v. Sloan (Ohio App. 2 Dist., 07-15-2005) 162 Ohio App.3d 263, 833 N.E.2d 331, 2005-
Ohio-3735. Fraud 12
Declarations of the grantor which were made in the absence of the grantee are not competent evidence to prove the alleged
fraud as basis to set aside deed, but statements of the grantor which tend to rebut the claim of fraud, whether made before or
after the signing of the deed, are admissible. Augenstein v. Augenstein (Ohio Com.Pl., 02-02-2000) 107 Ohio Misc.2d 44,
737 N.E.2d 613. Deeds 203
Surviving spouse of deceased farm owner, and administrator of owner's estate, failed to meet burden of showing by clear and
convincing evidence that deeds through which owner conveyed farm to his three children, and reserved a life estate for
himself, were result of fraud or undue influence, as required to set aside deeds; any presumption created by confidential
relationship was rebutted by testimony that deeds were consistent with owner's long-stated intention to pass farm to his
children. Augenstein v. Augenstein (Ohio Com.Pl., 02-02-2000) 107 Ohio Misc.2d 44, 737 N.E.2d 613. Deeds 211(3); Deeds
211(4)
Surviving spouse and administrator of estate of owner of farm, who challenged owner's actions shortly before his death in
conveying farm to his three children, and reserving a life estate for himself, as the result of fraud or undue influence, had
burden to show by clear and convincing evidence that owner's signature on deeds making conveyance was in fact the result of
fraud or undue influence. Augenstein v. Augenstein (Ohio Com.Pl., 02-02-2000) 107 Ohio Misc.2d 44, 737 N.E.2d 613.
Deeds 196(2); Deeds 196(3)
Party seeking rescission and cancellation of a deed because of undue influence or lack of capacity has the burden of proof by
clear and convincing evidence. McCluskey v. Burroughs (Belmont 1982) 4 Ohio App.3d 182, 446 N.E.2d 1143, 4 O.B.R.
284. Deeds 211(1); Deeds 211(4)
In an action against one holding legal title to real estate by one claiming a right of such property through an agreement with
the former owner, there can be no cancellation of the deed without a finding that fraud existed in the conveyance. Fehrman v.
Ellison (Clermont 1971) 32 Ohio App.2d 258, 290 N.E.2d 190, 61 O.O.2d 286.
Statements of grantor, whether before or after the signing of the deed, which tend to rebut the claim of fraud therein, are
competent as declarations against interest. McAdams v. McAdams (Ohio 1909) 80 Ohio St. 232, 88 N.E. 542, 7 Ohio Law
Rep. 31. Deeds 203; Evidence 222(4)
In an action by a wife, or a guardian in her behalf, to have declared null and void a conveyance of her lands on the ground
that she was induced to make such conveyance by undue influence, or on the ground that she was not conscious of her act in
executing the same, and it appears from its face that it was duly executed and acknowledged in the manner and form
prescribed by the statute, the burden is upon the plaintiff to establish one of the asserted grounds by clear and convincing
proof; a mere preponderance of the evidence in its favor is not sufficient. Willis v. Baker (Ohio 1906) 75 Ohio St. 291, 79
N.E. 466, 4 Ohio Law Rep. 521, 4 Ohio Law Rep. 529.
Deed executed under duress, is voidable, not void. Commercial Nat. Bank of Cleveland v. Wheelock (Ohio 1895) 52 Ohio St.
534, 33 W.L.B. 233, 40 N.E. 636, 49 Am.St.Rep. 738, 2 Ohio Leg. N. 486.
17. ---- Minors; capacity, deeds
A deed duly executed and acknowledged by a minor married woman is not void, but voidable only. Card v. Patterson (Ohio
1855) 5 Ohio St. 319. Deeds 12; Husband And Wife 179; Infants 26
Conveyance by infant as trustee is valid. Sheldon's Lessee v. Newton (Ohio 1854) 3 Ohio St. 494.
Where an infant purchases land for another person who furnishes the purchase price, and the infant immediately conveys the
land to the third person, he may not disaffirm that sale upon arriving at full age. Sheldon's Lessee v. Newton (Ohio 1854) 3
Ohio St. 494.
Where an infant conveys land and, after his arrival at full age conveys the same land to a third person, the subsequent
conveyance is a disaffirmance of the former conveyance. Cresinger v. Welch's Lessee (Ohio 1846) 15 Ohio 156, 45 Am.Dec.
565.
A deed, duly executed by a husband and wife when she was an infant does not bar her right to dower. Hughes v. Watson
(Ohio 1840) 10 Ohio 127.
A conveyance made by an infant feme covert may be disaffirmed, and the statute of limitations does not bar her right to bring
an action in ejectment. Drake's Lessee v. Ramsay (Ohio 1831) 5 Ohio 251. Husband And Wife 74
A court of equity cannot order an infant to convey land with warranty covenants because infants are not capable in law of
making covenants to bind themselves. St. Clair's Heirs and Adm'rs v. Smith (Ohio 1828) 3 Ohio 355.
18. ---- Destruction or loss of deed, deeds
If, after title is vested in a grantee by a conveyance, the unrecorded deed is, by mutual consent, destroyed, the title is not
thereby reinvested in the grantor. Spangler v. Dukes (Ohio 1884) 39 Ohio St. 642.
When an instrument conveying an estate has taken effect its destruction by the parties is ineffectual to revest the estate.
Dukes v. Spangler (Ohio 1878) 35 Ohio St. 119.
Title having passed by delivery of a deed is not divested by the destruction or loss of the instrument. Blackburn's Lessee v.
Blackburn (Ohio 1837) 8 Ohio 81.
19. ---- Recording, deeds
Purchaser was damaged by settlement agent's failure to immediately record deed following closing; cloud on title arose
because of judgment filed against vendor after closing but before deed was recorded, regardless of validity of judgment lien.
Meerhoff v. Huntington Mtge. Co. (Ohio App. 3 Dist., 04-27-1995) 103 Ohio App.3d 164, 658 N.E.2d 1109, appeal not
allowed 74 Ohio St.3d 1408, 655 N.E.2d 187. Deposits And Escrows 13
Where a judgment lien is filed, pursuant to RC 2329.02, on property the actual possession of and the deed to which have
previously been conveyed, such filing is not effective to defeat the interests of the grantee even though the deed has not been
recorded, unless the conveyance is made to defraud the creditor. University Associates v. Sterling Finance Co. (Hamilton
1973) 37 Ohio App.2d 17, 305 N.E.2d 924, 66 O.O.2d 32.
The retention by the grantor of possession of a deed, made in completion of a written contract by which he was to convey his
interest in his residential property to certain of his children but retain a life estate, does not overcome the presumption, which
arises from its recording, that the grantor intended to make the deed effective. In re Kusar's Estate (Ohio Prob. 1965) 5 Ohio
Misc. 23, 211 N.E.2d 535, 34 O.O.2d 32.
The fact that a deed was duly filed for recording and recorded with the recorder of Franklin county, standing alone raises a
presumption of the delivery of the deed and the burden of overcoming this presumption is upon the one denying delivery.
Weinlein v. Bedford (Franklin 1956) 138 N.E.2d 178, 73 Ohio Law Abs. 378. Deeds 194(5)
Under Ohio law, recording of improperly acknowledged mortgage that was not entitled to be recorded did not put any
subsequent bona fide purchaser on constructive notice of mortgage lien, such that trustee of debtor-mortgagors' Chapter 7
estate was entitled to avoid mortgage in exercise of strong-arm powers as hypothetical bona fide purchaser. In re Andrews
(Bkrtcy.S.D.Ohio, 02-20-2008) 2008 WL 5869075.
Under Ohio law, recording of deed by grantor raises presumption of delivery. In re Hayes (Bkrtcy.N.D.Ohio, 12-02-2002)
293 B.R. 420. Deeds 194(5)
A contract for the sale of land, which is not witnessed, acknowledged or otherwise executed in accordance with RC 5301.01
is an instrument not entitled to recording. State ex rel. Puthoff v. Cullen (Lucas 1966) 5 Ohio App.2d 13, 213 N.E.2d 201, 34
O.O.2d 61.
An executory contract for the sale of land is not entitled to recording under RC 317.08. 1955 OAG 5064.
20. ---- Sheriff's deeds, deeds
Sheriff's deed takes effect from day of sale so as to pass all of judgment debtor's interest at that time. Boyd's Lessee v.
Longworth (Ohio 1842) 11 Ohio 235. Execution 321; Judicial Sales 61
A sheriff's deed that recites enough to show the sheriff's authority is good, even though it does not recite all that the statute
requires. Perkins' Lessee v. Dibble (Ohio 1841) 10 Ohio 433, 36 Am.Dec. 97. Execution 311; Judicial Sales 61
Acknowledgment of sheriff's deed made by deputy after death of sheriff, is void. Anderson's Lessee v. Brown (Ohio 1839) 9
Ohio 151.
Sheriff's deed reciting enough of proceeding to show clear right to its execution is sufficient. Armstrong's Lessee v. McCoy
(Ohio 1837) 8 Ohio 128, 31 Am.Dec. 435.
Irregularities in proceedings do not affect title conveyed by sheriff under order of court. Doe v. Dugan's Ex'rs (Ohio 1837) 8
Ohio 87, 31 Am.Dec. 432.
A deputy sheriff may execute a valid deed for lands sold on execution by himself or his principal. Haines' Lessee v. Lindsey
(Ohio 1829) 4 Ohio 88, 19 Am.Dec. 586. Execution 305; Judicial Sales 61
The provision (in RC 5301.01) requiring the acknowledgement of a sheriff's deed in court is conducive to the security of all
parties, is a substantial part of the transaction, and cannot be dispensed with; further, acknowledgment cannot be presumed.
Roads v. Symmes (Ohio 1824) 1 Ohio 281, 13 Am.Dec. 621.
There is no requirement that a sheriff's deed reference a restriction that requires property owners to pay monthly fees for use
and support of a subdivision's recreational facility and a party who buys property at a sheriff's sale without actual notice of
the deed restriction is nonetheless bound by the restriction nine years after purchasing the property where the deed is duly
recorded within the buyer's chain of title. Kimberly Recreation Ass'n v. Butts (Ohio App. 10 Dist., Franklin, 04-10-1997) No.
96APG09-1202, 1997 WL 170293, Unreported.
21. ---- Recording, mortgages

Lender that refinanced a loan secured by a mortgage, and that released its original mortgage and recorded a new mortgage in
connection with the refinancing, was not entitled to be equitably subrogated to the lien priority of its original mortgage, and
thus new mortgage was subordinate to mortgage recorded by a different lender in the interim, even though other lender's
mortgage did not appear on title report prepared in connection with the refinancing; refinancing lender exercised complete
control over the transaction, including selecting the title company whose examiner missed the intervening mortgage.
Citifinancial, Inc. v. Howard (Ohio App. 3 Dist., 09-15-2008) No. 6-08-08, 2008 -Ohio- 4648, 2008 WL 4193051,
Unreported. Mortgages 181; Subrogation 31(4)
Mortgage held by vendors of home had priority over mortgage held by purchaser's bank lender, though vendors' interest was
recorded eight days after formal closing transaction between purchaser, bank and vendors, where file stamp on bank's
promissory note and mortgage deed indicated that bank recorded its interest nearly nine months subsequent to vendors'
recording. State Sav. Bank v. Gunther (Ohio App. 3 Dist., 04-23-1998) 127 Ohio App.3d 338, 713 N.E.2d 7, dismissed,
appeal not allowed 83 Ohio St.3d 1429, 699 N.E.2d 945. Mortgages 163(2)
Under Ohio law, a defectively executed mortgage is not entitled to be recorded, and even if it is recorded, the defective
mortgage is treated as though it has not been recorded. In re Sauer (Bkrtcy.S.D.Ohio, 09-25-2009) 2009 WL 3064782.
Mortgages 91; Mortgages 171(4)
Under Ohio law, improperly executed mortgage is not entitled to be recorded, and even if it is mistakenly recorded, does not
put a subsequent bona fide purchaser on constructive notice. In re Cornelius (Bkrtcy.S.D.Ohio, 07-14-2009) 2009 WL
2179128. Mortgages 91; Vendor and Purchaser 231(17)
Under Ohio law, a defectively executed mortgage is not entitled to record, and even if it is recorded, the defective mortgage
is treated as though it has not been recorded. In re Peed (Bkrtcy.S.D.Ohio, 03-27-2009) 2009 WL 817242. Mortgages 171(4)
Under Ohio law, improperly executed mortgage is not entitled to be recorded, and cannot put a subsequent bona fide
purchaser on constructive notice. In re Andrews (Bkrtcy.S.D.Ohio, 02-20-2008) 2008 WL 5869075.
Under Ohio law, mortgage that is improperly executed is not entitled to be recorded. In re Robinson (Bkrtcy.S.D.Ohio, 03-
26-2008) 2008 WL 5869074.
Under amended Ohio statute, even a defectively executed mortgage, if properly recorded, will serve to place a bona fide
purchaser on constructive notice of encumbrance, and thus cannot be avoided by bankruptcy trustee in exercise of strong-arm
powers as hypothetical bona fide purchaser, unless trustee's strong-arm rights have already vested. In re Potts
(Bkrtcy.N.D.Ohio, 10-16-2006) 353 B.R. 874. Bankruptcy 2705; Mortgages 171(4)
Chapter 11 debtor-in-possession, in exercise of its strong-arm powers as hypothetical bona fide purchaser, could not avoid
the mortgage lien held under properly recorded mortgage by third party creditor to which original mortgage lender had
transferred the mortgage note, notwithstanding alleged procedural defects in duly recorded assignment of mortgage to entity
that was to act as servicing agent thereon, which allegedly obscured limited agency relationship existing between this entity
and holder of mortgage note; this entity, while apparently never holding beneficial interest in any mortgage or mortgage note,
held legal title as mortgagee of record to over 40 million mortgages, and bankruptcy court could not find that hypothetical
bona fide purchaser might be misled by assignment. In re Gemini Services, Inc. (Bkrtcy.S.D.Ohio, 08-29-2006) 350 B.R. 74.
Bankruptcy 2705
Under Ohio law, a defectively executed mortgage, which is properly recorded, places a bona fide purchaser on constructive
notice of the encumbrance, and cannot be avoided by a bankruptcy trustee in exercise of his or her strong-arm powers unless
the bankruptcy trustee's rights have already vested. In re Baker (Bkrtcy.N.D.Ohio, 10-08-2003) 300 B.R. 298. Bankruptcy
2705
As a ministerial officer the county recorder must receive and record in the record of mortgages any written instrument which
purports to effect the conditional conveyance of an interest in real property. 1956 OAG 6400.
Piece of paper pasted to mortgage after same has been presented for recording, on which paper appears purported release of
such mortgage but not executed in manner prescribed by this section, is not proper release and county recorder is under no
duty to record same on margin of record of original mortgage. 1943 OAG 5805.
22. ---- In general, mortgages
Deed absolute in form, if given to secure debt, is a mortgage. Slutz v. Desenberg (Ohio 1876) 28 Ohio St. 371.
Distinction between absolute deed and a mortgage is, that one is conditional and defeasible and the other is unconditional and
indefeasible. Hoffman, Burneston & Co. v. Mackall (Ohio 1855) 5 Ohio St. 124, 64 Am.Dec. 637.
Mortgagor failed to show that mortgagee acted in “bad faith” in its conduct regarding forbearance on defaulted loans, even
though mortgagor claimed mortgagee acted in concert with its sister bank, which was participating in development project
involving the mortgaged land, to coerce mortgagor to continue working on the project after his initial default, given that
mortgagee's relationship with mortgagor was based solely on the loans. Kohl v. Natl. City Bank (Ohio App. 5 Dist.,
Tuscarawas, 04-18-2006) No. 05AP05033, 2006-Ohio-2031, 2006 WL 1063750, Unreported. Mortgages 216
Mortgagor failed to show that mortgagee made a clear and unambiguous promise not to collect on defaulted loans in
exchange for mortgagor‘s continued work on development project involving mortgagee's sister bank, as required element in
mortgagor's promissory estoppel claim, even though mortgagee was listed as “trustee” of the revenue bond issuance to fund
the project and mortgagor approached sister bank and requested that it intervene with mortgagee to obtain forbearance on the
loans, given that mortgagor had no direct contact with mortgagee regarding the development project, and there was no
indication that mortgagee know of or acquiesced to it being referred to as “trustee.” Kohl v. Natl. City Bank (Ohio App. 5
Dist., Tuscarawas, 04-18-2006) No. 05AP05033, 2006-Ohio-2031, 2006 WL 1063750, Unreported. Estoppel 85
Mortgagee, having a valid judgment lien against mortgagor as to one parcel of real estate, was entitled to foreclose on all
properties in county owned by mortgagor. Fifth Third Bank v. Mufleh (Ohio App. 6 Dist., Lucas, 05-13-2005) No. L-04-
1188, No. L-04-1157, No. L-04-1262, 2005-Ohio-2351, 2005 WL 1125323, Unreported. Judgment 776; Judgment 801
Affidavits of collection manager and foreclosure specialist employed by mortgagee, which both stated that affiants had
personal knowledge of mortgagor's loan account and that it was in default in the amount of $34,679, were sufficient to
support summary judgment in favor of mortgagee in foreclosure action, where mortgagor did not present evidence to refute
affiants' claims, show that either affiant lacked personal knowledge or competence to testify, demonstrate that averments
were based upon inadmissible evidence, or claim to owe a different amount. Bank One, N.A. v. Lytle (Ohio App. 9 Dist.,
Lorain, 12-08-2004) No. 04CA008463, 2004-Ohio-6547, 2004 WL 2808915, Unreported, appeal not allowed 105 Ohio St.3d
1471, 824 N.E.2d 541, 2005-Ohio-1186, reconsideration denied 105 Ohio St.3d 1547, 827 N.E.2d 329, 2005-Ohio-2188.
Judgment 185.1(3); Judgment 185.3(15)
Check from mortgage broker to title company was dishonored due to insufficient funds, and thus, the mortgage failed. Lanco
Title Agency, Inc. v. Mortgage Plus, Inc. (Ohio App. 4 Dist., Jackson, 04-30-2004) No. 03CA6, 2004-Ohio-2267, 2004 WL
979827, Unreported. Mortgages 25(5)
Bank's mortgage had priority over prior lien held by owner's former husband, obtained in divorce proceeding, as lien was
never recorded and statutes governing encumbrances had mandatory recording clauses for priority. Bank of New York v.
Stambaugh (Ohio App. 11 Dist., Trumbull, 11-26-2003) No. 2002-T-0184, 2003-Ohio-6416, 2003 WL 22844267,
Unreported, appeal not allowed 102 Ohio St.3d 1422, 807 N.E.2d 367, 2004-Ohio-2003. Mortgages 163(1)
Relief permitted under Fair Debt Collection Practices Act (FDCPA) was limited to damages, and did not encompass
emergency injunction voiding state court's foreclosure proceedings. Kafele v. Lerner Sampson & Rothfuss, L.P.A. (C.A.6
(Ohio), 04-01-2003) No. 02-4199, 62 Fed.Appx. 584, 2003 WL 1795801, Unreported, certiorari denied 124 S.Ct. 1504, 540
U.S. 1221, 158 L.Ed.2d 157. Consumer Protection 41
On a city's claim for a money judgment against a spouse, wives of mortgagors who do not sign a note evidencing the
husband's debt to the city, but who have signed the mortgage, are personally liable for the underlying debt to the city based
upon the unambiguous language of a mortgage deed and security agreement evidencing a second mortgage on the parties'
home as security for the debt. City of Lorain v. Torres (Ohio App. 9 Dist., Lorain, 01-24-1996) No. 95CA006144, 1996 WL
27932, Unreported.
The unambiguous language of the default provisions of a mortgage purchase agreement requiring the buyers to obtain
financing before a closing is effectuated compel to a determination that no closing occurs when financing is not obtained; as a
result the buyers default as a matter of law. Urlin, Inc. v. Citi-Columbus Partners, II (Ohio App. 10 Dist., Franklin, 06-08-
1995) No. 94APE11-1674, 1995 WL 347427, Unreported.
In order to pass title of mortgaged premises to heirs of mortgagee by virtue of an assignment on mortgage, compliance must
be made with requirements of this section. Stafford v. Collins (Clark 1933) 16 Ohio Law Abs. 621. Executors And
Administrators 169
Home purchaser's bank lender, which held mortgage on the property, waived and relinquished its right to pursue fraud claim
against home's vendors, who were determined to be priority mortgage holders, where bank's original complaint did not
specifically make allegations of fraud, specific allegations of fraud first appeared in bank's motion for summary judgment,
and bank did not seek to file amended complaint until after trial judge granted summary judgment against it and it appealed
that ruling. State Sav. Bank v. Gunther (Ohio App. 3 Dist., 04-23-1998) 127 Ohio App.3d 338, 713 N.E.2d 7, dismissed,
appeal not allowed 83 Ohio St.3d 1429, 699 N.E.2d 945. Fraud 49
That fair market value of mortgage collateral exceeded loan amount at time borrower entered into loan did not excuse partial
guarantor from primary liability under guaranty agreement, since agreement disclosed that lender was not willing to make
loan with only property as security. Stone v. Natl. City Bank (Ohio App. 8 Dist., 09-05-1995) 106 Ohio App.3d 212, 665
N.E.2d 746, stay granted 74 Ohio St.3d 1472, 657 N.E.2d 780, cause dismissed 74 Ohio St.3d 1495, 658 N.E.2d 1064.
Guaranty 60.5
Under guaranty agreement in which guarantor absolutely and unconditionally guaranteed payment of first $40,000 of
$1,600,000 real estate loan, bank was not obliged to follow any priority in realizing on its security; thus, bank could seek
recovery from guarantor before foreclosing on real estate mortgage. Stone v. Natl. City Bank (Ohio App. 8 Dist., 09-05-
1995) 106 Ohio App.3d 212, 665 N.E.2d 746, stay granted 74 Ohio St.3d 1472, 657 N.E.2d 780, cause dismissed 74 Ohio
St.3d 1495, 658 N.E.2d 1064. Guaranty 77(3)
Until real estate loan had been fully satisfied, partial guarantor's interest in, or rights to be subrogated to or indemnified from,
any proceeds of future sale of property was inferior to bank's first mortgage, not superior. Stone v. Natl. City Bank (Ohio
App. 8 Dist., 09-05-1995) 106 Ohio App.3d 212, 665 N.E.2d 746, stay granted 74 Ohio St.3d 1472, 657 N.E.2d 780, cause
dismissed 74 Ohio St.3d 1495, 658 N.E.2d 1064. Guaranty 100; Subrogation 31(4)
Although equitable trust arose when real property owners caused properties to be transferred to associate, who was to use
property as collateral to obtain mortgage for the owners, who intended that they would retain beneficial interest in the
properties, constructive trust would not be imposed as against mortgagee which was attempting to foreclose on collateral
properties after associate absconded with mortgage money, where there was no evidence that mortgagee had actual
knowledge of owners' equitable interest in the properties; in fact, owners' plan to obtain the mortgage required that their
equitable interest remain secret. Union S. & L. Assn. v. McDonough (Ohio App. 12 Dist., 02-21-1995) 101 Ohio App.3d
273, 655 N.E.2d 426, appeal not allowed 72 Ohio St.3d 1551, 650 N.E.2d 1370. Trusts 357(1)
Mortgage instrument sufficiently gave notice that mortgage was conveyed by mortgagor for purpose of securing loan granted
by mortgagee bank, notwithstanding that instrument did not specifically refer to loan in issue, where it did provide adequate
notice that mortgage was granted as security for a promissory note executed by mortgagor to mortgagee bank, since there was
only one such note, so that obligation secured was absolutely identifiable. Sease v. John Smith Grain Co., Inc. (Darke 1984)
17 Ohio App.3d 223, 479 N.E.2d 284, 17 O.B.R. 489. Mortgages 50
Where a deed is executed in which the grantee agrees to assume a mortgage on real estate, but the mortgage is not then in
existence, the subsequent creation in the grantor of such indebtedness obligates the grantee under his agreement. Government
Sav. & Loan Co. v. Kaplan (Hamilton 1971) 35 Ohio App.2d 129, 300 N.E.2d 243, 64 O.O.2d 242. Mortgages 280(1)
Mortgagors' “appearance and consent to sell,” filed in trial court, admitting execution of mortgage, must be considered with
other evidence supporting valid execution thereof. Coshocton Nat. Bank v. Hagans (Coshocton 1931) 40 Ohio App. 190, 178
N.E. 330, 10 Ohio Law Abs. 203. Mortgages 74
Mortgagee destroying right of foreclosure by merging legal and equitable estates, released known surety, who signed
mortgage notes jointly with debtor as accommodation maker. Senter v. Senter (Ohio 1913) 87 Ohio St. 377, 101 N.E. 272, 10
Ohio Law Rep. 609. Bills And Notes 52; Principal And Surety 115(2)
Where a vested interest remains in grantor in a deed with a trust clause, such deed, as to rights of third persons, is a mortgage.
National Bank of Columbus v. Tennessee Coal, Iron & R. Co. (Ohio 1900) 62 Ohio St. 564, 44 W.L.B. 20, 57 N.E. 450.
A mortgage on realty, or any interest therein to be valid as against third persons, must be signed, acknowledged, witnessed
and recorded, as provided in this section and GC 8542 (RC 5301.23). Wright v. Franklin Bank (Ohio 1898) 59 Ohio St. 80,
40 W.L.B. 328, 51 N.E. 876. Mortgages 55
Statutes regulating mode of signing, sealing, acknowledging, and recording mortgages are limited in their application to those
particulars. New Vienna Bank v. Johnson (Ohio 1890) 47 Ohio St. 306, 23 W.L.B. 426, 24 N.E. 503.
Ohio statute providing that a recorded mortgage is irrebuttably presumed to be properly executed, regardless of any actual or
alleged defect in witnessing of mortgage, violated one-subject rule of the Ohio Constitution, and was void ab initio;
accordingly, statute had no effect on trustee's ability to avoid improperly witnessed mortgages in exercise of her strong-arm
rights as hypothetical bona fide purchaser. In re Huffman (C.A.6 (Ohio), 05-18-2005) 408 F.3d 290. Bankruptcy 2705;
Mortgages 74
Under Ohio law, when mortgaged property is subject of involuntary transfer, as when state exercises its condemnation power,
mortgagor is relieved of his or her contractual duty to pay prepayment premium to mortgagee, unless parties have explicitly
agreed that such payment shall be made even in event that mortgagor is forced to sell property. U.S. v. Harris (C.A.6 (Ohio),
04-04-2001) 246 F.3d 566. Mortgages 298(1)
Arbitration agreement executed at same time as mortgage loan transaction was not substantively unconscionable under Ohio
law due to lack of mutuality and the costs associated with arbitration; underlying mortgage transaction was supported by
consideration, and agreement gave arbitrator authority to determine which party was responsible for paying costs. Anderson
v. Delta Funding Corp. (N.D.Ohio, 01-24-2004) 316 F.Supp.2d 554. Alternative Dispute Resolution 134(6)
Arbitration agreement executed at same time as mortgage loan transaction was not procedurally unconscionable under Ohio
law; although mortgagor was allegedly an unsophisticated consumer who did not understand the agreement's language and
was not represented by counsel, she received notice several days prior to closing that she would be asked to enter into such an
agreement, initialed each page of the agreement at closing and signed her full name on the last page acknowledging receipt of
the agreement and opportunity to review it, and agreement's language was not particularly complex and its terms were not
typed in abnormally fine print. Anderson v. Delta Funding Corp. (N.D.Ohio, 01-24-2004) 316 F.Supp.2d 554. Alternative
Dispute Resolution 134(6)
Under Ohio law, if execution of mortgage substantially complies with statutory requirements, mortgage may still be
considered valid. In re Cornelius (Bkrtcy.S.D.Ohio, 07-14-2009) 2009 WL 2179128. Mortgages 55
Under Ohio law, a “mortgage” is a security agreement that conveys a legal interest in real property contingent on the
payment of an underlying debt. In re Little (Bkrtcy.N.D.Ohio, 12-22-2005) 335 B.R. 376. Mortgages 1
Under Ohio law, party challenging mortgage's validity must prove by clear and convincing evidence that mortgage is not
valid. In re Bozman (Bkrtcy.S.D.Ohio, 03-31-2007) 365 B.R. 824. Mortgages 86(1); Mortgages 86(3)
Under Ohio law, mortgage is not a separate property interest distinct from note that it secures, but is considered an incident to
that debt. In re Gemini Services, Inc. (Bkrtcy.S.D.Ohio, 08-29-2006) 350 B.R. 74. Mortgages 1
To avoid mortgage in exercise of his strong-arm powers, trustee of Chapter 7 estate of debtor-mortgagor had to show, by
clear and convincing evidence, that mortgage was not signed and notarized as purported. In re Bowling (Bkrtcy.S.D.Ohio,
06-10-2004) 314 B.R. 127. Bankruptcy 2704; Bankruptcy 2726.1(1); Bankruptcy 2727(1)
There is no per se rule of Ohio law that precludes party from relying solely on mortgagor's testimony to establish that
mortgage has been improperly executed. In re Bowling (Bkrtcy.S.D.Ohio, 06-10-2004) 314 B.R. 127. Mortgages 74
Under Ohio law, a mortgage that fails to meet all three statutory prerequisites is defectively executed. In re Baker
(Bkrtcy.N.D.Ohio, 10-08-2003) 300 B.R. 298. Mortgages 55
There are three prerequisites for the proper execution of a mortgage in Ohio: (1) mortgagor must sign the mortgage deed, (2)
mortgagor's signature must be attested by two witnesses, and (3) mortgagor's signature must be acknowledged or certified by
a notary public or other designated official. In re Baker (Bkrtcy.N.D.Ohio, 10-08-2003) 300 B.R. 298. Mortgages 56;
Mortgages 58; Mortgages 59
Where a mortgagee has a legal right to foreclose on a mortgage and the mortgagor gives a second mortgage to avoid
litigation, the second mortgage cannot be held invalid and set aside on grounds that threats by the mortgagee to foreclose
constitute duress. Matter of Merrick (Bkrtcy.S.D.Ohio 1984) 44 B.R. 967.
Mortgagee's assignee failed to establish that it had an interest in the property, as mortgagee's interest was foreclosed by court
before mortgagee assigned its interest to assignee, which could acquire no more interest than mortgagee held; foreclosure of
mortgagee's interest was a fact that was a matter of public record and could have been determined by assignee. Quill v.
Maddox (Ohio App. 2 Dist., Montgomery, 05-31-2002) No. 19052, 2002-Ohio-2703, 2002 WL 1150834, Unreported.
Mortgages 246
23. ---- Mistake; defect; cure, mortgages
Clerical inaccuracies in the description of a debt will not affect the lien of a mortgage as against the mortgagor or his
subsequent judgment creditors, provided the debt is clearly identified as the one intended to be secured. Tousley v. Tousley
(Ohio 1855) 5 Ohio St. 78. Mortgages 50
Vendor of real property was liable for anticipatory breach of contract for sale of real property, where contract unambiguously
provided that purchaser had the “option” to assume mortgage, vendor insisted that purchase could be consummated only if
purchaser assumed existing mortgage, and purchaser would have been ready, willing and able to purchase the property had
vendor not breached the terms of the agreement. Allegro Realty Advisors, Ltd. v. Orion Assoc., Ltd. (Ohio App. 8 Dist.,
Cuyahoga, 09-07-2006) No. 87004, 2006-Ohio-4588, 2006 WL 2567665, Unreported. Vendor And Purchaser 343(4)
Mortgage was valid and enforceable, even if only one of the two attesting witnesses was actually present when mortgagors
signed it, since mortgagors' signatures were not obtained by fraud. Texas Commerce Bank Nat. Ass'n v. Joseph (Ohio App. 8
Dist., Cuyahoga, 03-06-2003) No. 81097, 2003-Ohio-995, 2003 WL 757015, Unreported. Mortgages 58
Trial court could not reform defectively executed mortgage; to do so would be to supply the formalities required by statute
for the execution of an instrument and create a new agreement for the parties thereto. Mtge. Electronic Registration Sys. v.
Odita (Ohio App. 10 Dist., 10-19-2004) 159 Ohio App.3d 1, 822 N.E.2d 821, 2004-Ohio-5546. Reformation Of Instruments
12
When all parties agree to execute a mortgage contract partially in blank and one or both of the parties do in fact supply the
missing information within a reasonable time, the mortgage is valid and enforceable by and between the parties or their
assigns. Security Bank v. Hawk (Ohio 1988) 35 Ohio St.3d 1, 517 N.E.2d 886. Mortgages 63
Since a defectively executed mortgage is valid as between the parties thereto, and since an assignee obtains the rights of his
assignor, then the defectively executed mortgage is effective between the parties and their assigns. Seabrooke v. Garcia
(Lorain 1982) 7 Ohio App.3d 167, 454 N.E.2d 961, 7 O.B.R. 212. Mortgages 55; Mortgages 246
Defective mortgage having only one witness, although recorded and valid as against mortgagors, held ineffective as against
subsequent valid recorded mortgage to third person. Coshocton Nat. Bank v. Hagans (Coshocton 1931) 40 Ohio App. 190,
178 N.E. 330, 10 Ohio Law Abs. 203. Mortgages 171(4)
Mortgage apparently duly executed and recorded is presumably valid, and must be shown to be defective by preponderance
of evidence. Coshocton Nat. Bank v. Hagans (Coshocton 1931) 40 Ohio App. 190, 178 N.E. 330, 10 Ohio Law Abs. 203.
Mortgages 74
A recorded mortgage witnessed by only one witness is defective, and, although it is valid against the mortgagors, it is invalid
against a subsequent properly executed and recorded mortgage. Coshocton Nat. Bank v. Hagans (Coshocton 1931) 40 Ohio
App. 190, 178 N.E. 330, 10 Ohio Law Abs. 203.
Doctrine of substantial compliance, as applied by Ohio courts to prevent invalidation of mortgage for minor deficiencies in
its execution, mandated that the corrective language or means of making the correction be found within mortgage document
itself, and did not allow submission of affidavit that notary gave years after execution of mortgage in order to correct
deficiency arising from fact that notary's acknowledgement stated only that debtor-husband had appeared before him and
acknowledged instrument and failed to indicate that debtor-wife, who was also borrower and mortgagor, had likewise
appeared and acknowledged instrument. In re Andrews (Bkrtcy.S.D.Ohio, 02-20-2008) 404 B.R. 275.
Recording of mortgage was not defective under Ohio law, so as to permit avoidance thereof in strong-arm proceeding
brought by trustee of debtor-mortgagors' Chapter 7 estate, merely because notary public's raised seal could not be detected on
image of mortgage available in public records. In re Robinson (Bkrtcy.S.D.Ohio, 03-26-2008) 403 B.R. 497.
Mortgage's acknowledgment clause, which omitted debtor's name as mortgagor and contained other deficiencies, remained
defective even if, as mortgagee's nominee contended, debtor appeared before notary when she signed mortgage, such that
mortgage, which did not contain information correcting deficiencies, would still not substantially comply with Ohio's
requirements for properly executed mortgage, and could be avoided by Chapter 7 trustee through exercise of his strong-arm
powers under Bankruptcy Code. In re Leahy (Bkrtcy.S.D.Ohio, 09-28-2007) 376 B.R. 826. Mortgages 59
Abbreviated notary acknowledgment clause in mortgage, which consisted merely of the words, “Witness my hand,” a date,
and signature of notary public with no recitation of name of either of mortgage-borrowers whose execution of mortgage was
purportedly acknowledged by notary, rendered the mortgage defective under Ohio law and subject to avoidance by trustee of
mortgage-borrowers' Chapter 7 estate in exercise of strong-arm powers as hypothetical bona fide purchaser. In re Nolan
(Bkrtcy.S.D.Ohio, 03-21-2007) 365 B.R. 804. Bankruptcy 2705; Mortgages 59
Under Ohio law, defective mortgage gave mortgagee at most an equitable interest in mortgaged property, which was nullified
upon Chapter 7 trustee's avoidance of mortgage in exercise of strong-arm powers. In re Priest (Bkrtcy.N.D.Ohio, 05-25-2000)
268 B.R. 135. Bankruptcy 2704; Mortgages 27
Material fact question, whether assignee was aware, at time it accepted assignment of defectively witnessed mortgage, of
defect therein, precluded entry of summary judgment on assignee's “good faith for value” defense to strong-arm avoidance
proceeding brought by trustee of debtor-mortgagors' Chapter 7 estate. In re Caldwell (Bkrtcy.S.D.Ohio, 11-22-2000) 257
B.R. 241. Bankruptcy 2164.1; Federal Civil Procedure 2486
Where a mortgage is regularly executed except that in the certificate of the notary the name of the mortgagee was
inadvertently inserted instead of the name of the mortgagor, such mortgage will be held valid as against subsequently filed
mechanic's liens, since such lienors were put on notice of the existence of the mortgage and could not have been misled by
the palpable mistake. Weller v. Shafer (Ohio Com.Pl. 1932) 29 Ohio N.P.(N.S.) 399.
24. ---- Covenants, deeds
Homeowner waived right to enforce against neighbor a deed restriction limiting home to “one and one-half stories in height,”
i.e., no higher than 15 feet, where purpose of restriction was to maintain the aesthetic character of the subdivision, and at the
time homeowner acquired her property, she was already on notice that three of the twelve subdivision owners subject to the
restriction had constructed homes that violated the restriction. Corna v. Szabo (Ohio App. 6 Dist., Ottawa, 06-02-2006) No.
OT-05-025, 2006-Ohio-2764, 2006 WL 1516407, Unreported. Covenants 103(3)
Approval of bi-level houses by lotowners' association did not waive homeowner's right to enforce against neighbor a deed
restriction limiting home to “one and one-half stories in height,” where association was voluntarily created, and homeowner
was not a member of the association. Corna v. Szabo (Ohio App. 6 Dist., Ottawa, 06-02-2006) No. OT-05-025, 2006-Ohio-
2764, 2006 WL 1516407, Unreported. Covenants 103(3)
House that was thirty-four and one-half feet tall violated deed restriction limiting home to “one and one-half stories in
height,” even though roofline began at the top of the first floor, where evidence indicated that a story varied between seven
and nine feet and that a one and one-half story home would be no higher than 15 feet. Corna v. Szabo (Ohio App. 6 Dist.,
Ottawa, 06-02-2006) No. OT-05-025, 2006-Ohio-2764, 2006 WL 1516407, Unreported. Covenants 51(2)
Term in deed restrictions, limiting home to “one and one-half stories in height” was not ambiguous, where only possible
meaning the phrase could have had when written was that structures greater in height than one and one-half stories were
prohibited, regardless of whether roofline began at the top of the first floor. Corna v. Szabo (Ohio App. 6 Dist., Ottawa, 06-
02-2006) No. OT-05-025, 2006-Ohio-2764, 2006 WL 1516407, Unreported. Covenants 51(2)
Issue of whether property owner's neighbors violated deed restrictions was for the jury in owner's action alleging nuisance
and other claims, even though interpretation of the deed restrictions was a question of law; violation of the restrictions was a
question of fact, owner did not assign as error for purposes of appeal the submission of such factual questions to the jury, and
jury had authority to accept or reject the testimony as to violations of the deed restrictions. (Per Boggins, P.J., with two
judges concurring in judgment only.) Weinfeld v. Welling (Ohio App. 5 Dist., Stark, 09-06-2005) No. 2004CA00340, 2005-
Ohio-4721, 2005 WL 2175141, Unreported, appeal allowed 108 Ohio St.3d 1435, 842 N.E.2d 61, 2006-Ohio-421, reversed
113 Ohio St.3d 464, 866 N.E.2d 1051, 2007-Ohio-2451. Covenants 134
Covenant requiring any proposed building in residential development to be in harmony with the architecture of buildings on
neighboring properties, all fronts to be approximately fifty percent natural material such as wood, stone, or brick, and all
sides of the residence to have brick or stone to grade did not require all exterior walls to be constructed of stone or brick,
from top to grade. Yeh v. Cameratta Properties, Ltd. (Ohio App. 8 Dist., Cuyahoga, 11-18-2004) No. 84355, 2004-Ohio-
6090, 2004 WL 2609775, Unreported. Covenants 69(2)
Where the language contained in a deed restriction is indefinite, doubtful and capable of contradictory interpretation, that
construction must be adopted which least restricts the free use of the land. Houk v. Ross (Ohio 1973) 34 Ohio St.2d 77, 296
N.E.2d 266, 63 O.O.2d 119. Covenants 49
Where it is shown by competent evidence that restrictive covenants sought to be cancelled were imposed by a developer of
land upon the property of an owner for the benefit of other property owners, in order to effect a general building scheme or
plan, the intended beneficiaries may maintain an action for the enforcement of such restrictive covenants against the
developer and the owner seeking cancellation of the restrictive covenants upon his property. Berger v. Van Sweringen Co.
(Ohio 1966) 6 Ohio St.2d 100, 216 N.E.2d 54, 35 O.O.2d 127.
Restrictive covenants are enforceable unless against public policy. Dixon v. Van Sweringen Co. (Ohio 1929) 121 Ohio St.
56, 166 N.E. 887, 7 Ohio Law Abs. 351, 29 Ohio Law Rep. 280.
Purchaser at sheriff's sale and his successor in title, both of whom received deeds embodying a restriction limiting use of the
premises to residential use, are estopped from questioning the validity of the restrictions contained in their respective deeds.
Cleveland Baptist Ass'n v. Scovil (Ohio 1923) 107 Ohio St. 67, 140 N.E. 647, 1 Ohio Law Abs. 228, 20 Ohio Law Rep. 590,
20 Ohio Law Rep. 591.
The purchaser of a lot in an allotment whose deed contains restrictions as to the use of the lot is not chargeable from that fact
alone with notice that like restrictions are contained in the deeds to other purchasers of lots in the allotment. Kiley v. Hall
(Ohio 1917) 96 Ohio St. 374, 117 N.E. 359, 15 Ohio Law Rep. 175, 15 Ohio Law Rep. 245. Covenants 79(3); Deeds 176;
Injunction 62(1)
A restrictive covenant in a deed will not prevent the state or any body politic or corporate having the right of eminent domain
from appropriating the property to public use. Wallace v. Clifton Land Co. (Ohio 1915) 92 Ohio St. 349, 110 N.E. 940, 13
Ohio Law Rep. 173, 13 Ohio Law Rep. 249. Eminent Domain 45
A covenant against encumbrance is broken as soon as made if an encumbrance upon the lands in fact exists. Stambaugh v.
Smith (Ohio 1873) 23 Ohio St. 584.
Where administratrix in deed signs as “ administratrix of S. M. L.'s estate,” and in covenants of deed she is named, but not as
administratrix, and deed contains no reference to order of court to sell, the covenants are prima facie individual and not
representative. Lockwood v. Gilson (Ohio 1861) 12 Ohio St. 526.
Covenant of seizin in deed is broken as soon as made and never attaches to land, being only personal where covenanter is not
in possession at time of making same. Backus' Adm'rs v. McCoy (Ohio 1827) 3 Ohio 211, 17 Am.Dec. 585.
Covenant to warrant and defend by executor is not a personal covenant. Day v. Brown (Ohio 1826) 2 Ohio 345.
Restrictive covenant requiring all structures in subdivision to be built by “stick or panelized construction methods” clearly
barred lot owners from placing pre-fabricated home on their lot in subdivision, and thus trial court erred in finding that piece-
by-piece construction of structure on site was indistinguishable from piece-by-piece construction of structure in factory.
Brooks v. Orshoski (Ohio App. 6 Dist., 08-14-1998) 129 Ohio App.3d 386, 717 N.E.2d 1137, appeal not allowed 84 Ohio
St.3d 1450, 703 N.E.2d 328. Covenants 51(2)
“Foundation area” in deed restriction required newly constructed houses to exceed a minimum size; although drafter of
restriction may have intended to implicitly require certain types of foundations and to exclude others, it was rational to
interpret foundation area requirement in light of drafter's intent to preserve property values as requiring one-story houses to
have more than 720 square feet of floor space. Groff v. Heath (Ohio App. 11 Dist., 12-10-1996) 116 Ohio App.3d 300, 688
N.E.2d 18. Covenants 51(2)
In applying land-use restrictions written into plat or deed, courts are to construe language used in accordance with intent of
parties. Groff v. Heath (Ohio App. 11 Dist., 12-10-1996) 116 Ohio App.3d 300, 688 N.E.2d 18. Covenants 49
Restrictive covenants in deeds are generally enforceable, unless contrary to public policy, if purpose is to establish general
scheme in tract of property to make it more attractive for residential purposes. Benner v. Hammond (Ohio App. 4 Dist., 03-
15-1996) 109 Ohio App.3d 822, 673 N.E.2d 205, stay denied 75 Ohio St.3d 1482, 664 N.E.2d 535, appeal not allowed 77
Ohio St.3d 1479, 673 N.E.2d 141. Covenants 1
Court must construe language of covenant by giving it its common and ordinary meaning in light of factual circumstances
surrounding writing of restrictive covenant. Benner v. Hammond (Ohio App. 4 Dist., 03-15-1996) 109 Ohio App.3d 822, 673
N.E.2d 205, stay denied 75 Ohio St.3d 1482, 664 N.E.2d 535, appeal not allowed 77 Ohio St.3d 1479, 673 N.E.2d 141.
Covenants 49
Where language contained in deed restriction is unclear and capable of contradictory interpretation, deed restriction must be
construed against restriction and in favor of free use of land. Benner v. Hammond (Ohio App. 4 Dist., 03-15-1996) 109 Ohio
App.3d 822, 673 N.E.2d 205, stay denied 75 Ohio St.3d 1482, 664 N.E.2d 535, appeal not allowed 77 Ohio St.3d 1479, 673
N.E.2d 141. Covenants 49
Construction of a shelter house by a yacht club for social gatherings on lots encumbered by deed restrictions limiting the use
of such lots to single-family residence purposes is improper as a shelter house used by a yacht club for social gatherings is
not a single-family residential use. Dean v. Nugent Canal Yacht Club, Inc. (Ottawa 1990) 66 Ohio App.3d 471, 585 N.E.2d
554, motion overruled 53 Ohio St.3d 705, 558 N.E.2d 61.
A restriction on the use of land which requires prior approval of building plans is enforceable even without specific
guidelines to indicate the criteria for approval if either actual or constructive notice of the restriction exists and (1) the
restriction is used to enforce a “general plan or scheme” of development; (2) some other restriction or guideline exists to act
in conjunction with the prior approval restriction to give an overall limiting effect to the absolute discretion of those
empowered with granting or denying general approval; or (3) the restriction itself contains some limit on the scope of
approval. Berry v. Paisley (Erie 1990) 66 Ohio App.3d 77, 583 N.E.2d 430, dismissed 52 Ohio St.3d 712, 557 N.E.2d 1220.
Covenants 49
Restrictive covenants on the use of a boathouse lot which require prior written approval of building plans are enforceable
against boathouse lot owners where they have both actual and constructive notice that the restrictions on building exist to
promote a general plan or scheme of development as evidenced by the fact that all property owners in the harbor have the
same restrictions in their titles requiring prior approval of building plans, and straight, uniform development of the west walls
bordering the channel abutting the boathouses is readily observable. Berry v. Paisley (Erie 1990) 66 Ohio App.3d 77, 583
N.E.2d 430, dismissed 52 Ohio St.3d 712, 557 N.E.2d 1220.
No abandonment or waiver of building restrictions prohibiting the obstruction of a ninety-foot channel exists to estop
enforcement of the restrictions against boathouse owners by virtue of the fact that a T.V. antenna, two angle irons, and a rain
gutter are attached to other boathouses and extend to some extent over the channel since all these infractions are de minimis;
furthermore, the addition of more stories on some of the boathouses or changes on the east walls of some of the boathouses
does not constitute abandonment or waiver either as these changes in no way affect the integrity of the restrictions. Berry v.
Paisley (Erie 1990) 66 Ohio App.3d 77, 583 N.E.2d 430, dismissed 52 Ohio St.3d 712, 557 N.E.2d 1220.
Boathouse lot owners in a harbor subdivision have standing to enforce deed restrictions prohibiting the obstruction of a
ninety-foot channel where evidence establishes that the waterways are common areas of the subdivision and that deed
restrictions are placed in the titles of all property owners in the harbor to protect the integrity of the channels. Berry v. Paisley
(Erie 1990) 66 Ohio App.3d 77, 583 N.E.2d 430, dismissed 52 Ohio St.3d 712, 557 N.E.2d 1220. Covenants 77.1
A restrictive covenant contained in a deed which purports to prohibit installation of a buried storm sewer system and
manholes for such sewerage system level with the ground is unreasonable and, hence, unenforceable. Brock v. Strole (Wood
1989) 63 Ohio App.3d 96, 577 N.E.2d 1168. Covenants 51(1)
Where a restrictive covenant prohibits the erection of “structures” without prior approval, the failure to describe an outfall
pipe, visible to the eye, of a storm sewer system prevents a court from determining such pipe to be a structure in deciding a
summary judgment motion. Brock v. Strole (Wood 1989) 63 Ohio App.3d 96, 577 N.E.2d 1168.
A pooling agreement entered into by owners of realty subject to deed restrictions permitting only residential or agricultural
use of the realty constitutes an impermissible use of the property, although the drilling unit will not be located on the subject
property as oil located beneath the surface of the restricted properties will be drained by the drilling unit, and as such the
pooling agreement constitutes a prohibited business or commercial use of the property; neighboring property owners subject
to the same deed restrictions may seek to enjoin such prohibited use. Devendorf v. Akbar Petroleum Corp. (Summit 1989) 62
Ohio App.3d 842, 577 N.E.2d 707.
Where an owner of land has adopted a general building plan for the development of a particular tract which is designed to
make it more attractive for residential purposes by reason of certain restrictive covenants, such covenants are binding and
enforceable. Glassburn v. Fair (Miami 1970) 24 Ohio App.2d 40, 263 N.E.2d 570, 53 O.O.2d 122. Covenants 1
Lot owner cannot enforce restrictions in another's deed unless latter purchased with notice of general plan or with notice that
restrictions were inserted in deed for benefit of owners of other lots. Hayslett v. Shell Petroleum Corp. (Cuyahoga 1930) 38
Ohio App. 164, 175 N.E. 888, 8 Ohio Law Abs. 649, 33 Ohio Law Rep. 331. Covenants 79(3); Deeds 174
There being no general plan and no restrictions written in recorded plat and none in defendants' deed and defendants having
no notice, actual or constructive, of restrictions or of any plan in mind of original allotment owner, restrictions were not
binding on defendants. Hayslett v. Shell Petroleum Corp. (Cuyahoga 1930) 38 Ohio App. 164, 175 N.E. 888, 8 Ohio Law
Abs. 649, 33 Ohio Law Rep. 331. Covenants 79(3); Deeds 174
Restrictions to single family residences in deeds held ineffective where changed conditions of neighborhood substantially
destroyed value of restrictions. Hayslett v. Shell Petroleum Corp. (Cuyahoga 1930) 38 Ohio App. 164, 175 N.E. 888, 8 Ohio
Law Abs. 649, 33 Ohio Law Rep. 331. Covenants 72.1; Deeds 170
Restrictions in a deed, that lot conveyed thereby “shall be used for private residence purposes only,” do not prevent erection
upon said lot of more than one residence. Goodyear Heights Realty Co. v. Furry (Summit 1929) 33 Ohio App. 432, 170 N.E.
23, 8 Ohio Law Abs. 70, 30 Ohio Law Rep. 577. Covenants 51(2)
Deeds which restrict use of lots to “only one residence” limit their use to buildings for homes for one family. Johnston v.
Parkin (Summit 1928) 33 Ohio App. 174, 168 N.E. 755, 6 Ohio Law Abs. 685. Covenants 51(2); Deeds 171(2)
Breach of contract for resale of land, requiring that abstract be furnished showing title to be free from material defects, is not
necessarily a breach of covenant in deed that title was clear, free, and unencumbered, since title might be free from material
defects and yet vendor be unable to show such fact by abstract of record title. Smith v. McKelvey (Lucas 1928) 28 Ohio App.
361, 162 N.E. 722, 6 Ohio Law Abs. 677. Covenants 96(1); Vendor And Purchaser 140
The controlling factor in interpreting deed restrictions is the intention of the parties at the time the deed restrictions originate.
McBride v. Behrman (Ohio Com.Pl. 1971) 28 Ohio Misc. 47, 272 N.E.2d 181, 57 O.O.2d 77.
Where the right to enforce a restriction contained in the conveyance as to the use of the property conveyed is doubtful, all
doubt shall be resolved in favor of the free use thereof for lawful purposes by the owner of the fee. Yeager v. Cassidy (Ohio
Com.Pl. 1969) 20 Ohio Misc. 251, 253 N.E.2d 320, 49 O.O.2d 410. Covenants 49
A restrictive covenant in a deed providing that the property shall never be sold or conveyed to any colored person is invalid.
Determination of validity of restriction against permitting colored persons to occupy the premises held not necessary to
decision of case. Williams v. Commercial Land Co. (Franklin 1931) 10 Ohio Law Abs. 314, 34 Ohio Law Rep. 559.
Under Ohio law, exception to general rule that a contract for the purchase of real estate is merged into the deed conveying the
property is that agreements that are collateral to and independent of main purpose of transaction are not intended to be
merged in the deed, and exception applies when transfer of title is only one of the many obligations in purchase agreement;
party does not give up right to enforce covenants that are not performed or satisfied by transfer of deed. Dartron Corp. v.
Uniroyal Chemical Co., Inc. (N.D.Ohio, 02-22-1996) 917 F.Supp. 1173. Deeds 94
Recitals in a deed that its grant is subject to a zoning ordinance does not have the effect of establishing the substance of such
ordinance as a private restriction on the use of such land. University Hills, Inc. v. Patton (C.A.6 (Ohio) 1970) 28 Ohio Misc.
93, 427 F.2d 1094, 54 O.O.2d 421, 57 O.O.2d 132.
25. ---- Authority to execute, mortgages
“In testimony whereof, said company have caused their corporate seal to be attached hereto and signed by their president and
attested to by the secretary” and signed by president and secretary as such and sealed, was properly executed. Hays v. Galion
Gaslight & Coal Co. (Ohio 1876) 29 Ohio St. 330.
Purchaser of real property was not required to assume vendor's non-prepayable mortgage under contract, where contract
provided that purchaser had the “option” to assume mortgage, parties to contract were aware that loan was closed to
prepayment, and there was no evidence of drafting error. Allegro Realty Advisors, Ltd. v. Orion Assoc., Ltd. (Ohio App. 8
Dist., Cuyahoga, 09-07-2006) No. 87004, 2006-Ohio-4588, 2006 WL 2567665, Unreported. Vendor And Purchaser 57
Contract for sale of real property was not rendered illusory by provision stating that buyer could cancel the agreement if it
was not able to obtain satisfactory financing within the financing period; agreement did not give buyer an unlimited right not
to perform. Allegro Realty Advisors, Ltd. v. Orion Assoc., Ltd. (Ohio App. 8 Dist., Cuyahoga, 09-07-2006) No. 87004,
2006-Ohio-4588, 2006 WL 2567665, Unreported. Vendor And Purchaser 79
Partnership may give a legal mortgage. New Vienna Bank v. Johnson (Ohio 1890) 47 Ohio St. 306, 23 W.L.B. 426, 24 N.E.
503.
Corporation after moving out of Ohio, may make valid mortgage on its Ohio property. Lattimer v. Mosaic Glass Co. (Ohio
Cir. 1896) 7 Ohio C.D. 430.
Corporation can give a mortgage on all its property to secure a loan. Bosche v. Toledo Display Horse Co. (Ohio Cir. 1897) 7
Ohio C.D. 374.
Under Ohio law, improperly executed mortgage did not put Chapter 7 trustee, as a subsequent bona fide purchaser, on
constructive or inquiry notice of mortgagee's interest in debtor's property, and so trustee was entitled to avoid the mortgage
on debtor's one-half interest in the property, leaving mortgagee with an unsecured claim. In re Sauer (Bkrtcy.S.D.Ohio, 09-
25-2009) 2009 WL 3064782. Bankruptcy 2578; Bankruptcy 2587; Bankruptcy 2705
Under Ohio law, execution of mortgage must comply with statutorily required formalities to be considered valid. In re
Cornelius (Bkrtcy.S.D.Ohio, 07-14-2009) 2009 WL 2179128. Mortgages 55
Under Ohio law, only properly executed mortgages take priority over a bona fide purchaser. In re Peed (Bkrtcy.S.D.Ohio, 03-
27-2009) 2009 WL 817242. Vendor and Purchaser 239(4)
Vendor's transfer of real property to a third party, despite the fact that vendor had previously transferred it to a different party,
constituted “conversion” under Ohio law; mortgage note granted creditor's predecessor and its successors a security interest
in the property, vendor exercised dominion over the property by transferring it to third party, and creditor suffered damages
as a result of the transfer, since a different entity obtained a lien on the property which was superior to creditor's lien. In re
Little (Bkrtcy.N.D.Ohio, 12-22-2005) 335 B.R. 376. Mortgages 273
Even if Chapter 7 trustee was a bona fide purchaser under Ohio law, mortgagee's assignment of mortgage encumbering
debtors' real property to creditor that currently held mortgage note did not constitute a transfer of debtors' property, and so
could not be avoided pursuant to trustee's strong-arm powers; through the effectuation of the assignment of the mortgage,
debtors transferred nothing themselves and none of their property interests were transferred but, rather, what the assignment
conveyed was the mortgage itself and the rights and interests under that mortgage from one creditor to another creditor. In re
Williams (Bkrtcy.S.D.Ohio, 09-29-2008) 395 B.R. 33. Bankruptcy 2705
There are three prerequisites for the proper execution of mortgage under Ohio law: (1) mortgagor must sign the mortgage
deed; (2) mortgagor's signature must be attested by two witnesses; and (3) mortgagor's signature must be acknowledged or
certified by notary public or another designated official; mortgage that fails to meet all of these prerequisites is defectively
executed. In re Potts (Bkrtcy.N.D.Ohio, 10-16-2006) 353 B.R. 874. Mortgages 56; Mortgages 58; Mortgages 59
Chapter 7 trustee satisfied his burden of showing that, despite notarial acknowledgement to contrary, debtor's mortgage was
not properly executed in presence of two witnesses, and was thus ineligible for recording under governing Ohio law, based
on debtor's uncontradicted affidavit that mortgage was signed in her home with no witnesses present, and upon mortgage
lender's failure to present any evidence that this was contrary to its usual business practices. In re Collins (Bkrtcy.S.D.Ohio,
04-16-2003) 292 B.R. 842. Mortgages 74
Neither a now-repealed amendment to Ohio recording statute, providing that all recorded mortgages are irrefutably presumed
to have been properly executed, nor subsequent amendment eliminating requirement that mortgages be executed in presence
of two witnesses applied retroactively to mortgage which was executed prior to their effective date; rather, mortgage was
subject to prior law, under which two witnesses were required for proper execution of mortgage, any improperly executed
mortgage was not eligible for recording, and the recording of ineligible mortgage was ineffective. In re Collins
(Bkrtcy.S.D.Ohio, 04-16-2003) 292 B.R. 842. Mortgages 58; Mortgages 59; Mortgages 74; Mortgages 91
26. ---- Authority to execute, deeds
Doctrine of merger by deed did not apply to optionholder's purchase of her grandmother's farm, excluding an 18-acre parcel
held by quit-claim deed by her uncle, to extinguish an option to buy the entire farm given her by her grandmother,
exercisable at any time after six months after her grandmother's death, where optionholder's rights to the option were reserved
by affidavit of facts relating to title she executed the day before she purchased the land from her grandmother in which she
specifically stated the purchase would not result in such merger. Suermondt v. Lowe (Ohio App. 5 Dist., 01-17-2006) 165
Ohio App.3d 427, 846 N.E.2d 910, 2006-Ohio-224. Deeds 94
There is no general statute directing the form or manner of execution of deeds by corporations. City of Tiffin v. Shawhan
(Ohio 1885) 43 Ohio St. 178, 13 W.L.B. 641, 1 N.E. 581.
Deed executed by the president of a railroad company under seal of the corporation and delivered will be presumed to have
been authorized by the directors. Cincinnati, H. & D.R. Co. v. Harter (Ohio 1875) 26 Ohio St. 426, 1 W.L.B. 106.
Corporations 442
Deed of railroad corporation, under seal of same if objected to cannot be given in evidence without proof of its execution.
Walsh v. Barton (Ohio 1873) 24 Ohio St. 28.
Seal of a corporation affixed to a deed is prima facie evidence that it was affixed by the authority of the corporation. Sheehan
v. Davis (Ohio 1867) 17 Ohio St. 571.
Deed of banking corporation is legal when signed by cashier as such on behalf of bank and by its authority corporate seal is
affixed thereto. Sheehan v. Davis (Ohio 1867) 17 Ohio St. 571.
The sale and conveyance of one out of possession, when the land at the time is in the adverse possession of another claiming
title, is not void. Cresinger v. Welch's Lessee (Ohio 1846) 15 Ohio 156, 45 Am.Dec. 565.
Deed to bank may be signed by one of its stockholders, as subscribing witness. Doe ex dem. Johnson v. Turner (Ohio 1836) 7
Ohio 216, PT. II.
A deed of conveyance by a banking corporation is properly executed when the corporation's cashier, on its behalf and by its
authority, affixes thereto the corporate seal and subscribes his name as such cashier; and in such case, the cashier is the
proper person to acknowledge the deed. Doe ex dem. Johnson v. Turner (Ohio 1836) 7 Ohio 216, PT. II.
Seal of a corporation is not now necessary to its deed. East End Bldg. & Loan Co. v. Hughey (Ohio Cir. 1898) 8 Ohio C.D.
724.
A burial lot in a cemetery owned by a cemetery association can be conveyed only by deed executed in accordance with this
section. 1936 OAG 5446.
27. ---- Authority to execute, leases
Evidence was sufficient to support trial court's finding that prospective purchaser of real estate breached lease and option to
purchase contract he had with vendors; purchaser failed to fulfill a condition precedent by failing to provide vendors with a
legal description of the property, and purchaser failed to make all of the required installment payments. Weatherspoon v.
Kuhlman (Ohio App. 6 Dist., Ottawa, 11-09-2006) No. 0T-05-057, 2006-Ohio-5903, 2006 WL 3231273, Unreported, appeal
not allowed 113 Ohio St.3d 1443, 863 N.E.2d 658, 2007-Ohio-1266. Landlord And Tenant 92(1)
Original lease between original lessor and commercial lessee was irrelevant to current lessor's declaratory judgment action
regarding rights under lease, as lessor and lessee had executed new, but similar, lease which replaced prior lease. Kilcoyne
Properties, LLC v. Fischbach (Ohio App. 5 Dist., Licking, 07-26-2004) No. 03CA072, 2004-Ohio-3965, 2004 WL 1688567,
Unreported, entered nunc pro tunc 2004-Ohio-4815, 2004 WL 3564203, superseded 2004-Ohio-7272, 2004 WL 3563912.
Declaratory Judgment 345.1
Lease that was signed by rental property manager without written authorization from owner was unenforceable against
tenant. Reed v. Hallgren (Ohio App. 11 Dist., Ashtabula, 03-19-2004) No. 2003-A-0057, 2004-Ohio-1440, 2004 WL 574527,
Unreported. Landlord And Tenant 25
A defectively executed lease will be treated in equity as a contract to make a lease, but if the lease is executed by one acting
as agent not actually authorized by the owner to enter into such contract, the instrument is ineffective as a contract to make a
lease and is not enforceable against the owner. Lithograph Bldg. Co. v. Watt (Ohio 1917) 96 Ohio St. 74, 117 N.E. 25, 15
Ohio Law Rep. 82.
When the Governor, in the exercise of authority expressly conferred upon him by statute, grants to a municipality “all the
interest of the state” in canal lands which it owns in fee to be used for streets and other purposes, the municipality, reserving
the right to use the same for street purposes without compensation, takes a fee, and may execute a valid lease of such lands to
a railroad company for its general purposes. Cleveland Terminal & Valley R. Co. v. State ex rel. Atty. Gen. (Ohio 1912) 85
Ohio St. 251, 97 N.E. 967, 9 Ohio Law Rep. 554. Canals 20
Landlords of commercial property could seek reformation of lease, because landlords were parties to lease. FirstMerit
Corporation v. Convenient Food Mart, Inc. (Ohio App. 11 Dist., Lake, 03-07-2003) No. 2001-L-226, 2003-Ohio-1094, 2003
WL 943879, Unreported. Reformation Of Instruments 26
Lease agreement's attornment clause, under which tenant agreed to attorn to purchaser of property in foreclosure sale and to
recognize purchaser as lessor, took effect even in absence of written agreement executed by tenant evidencing the attornment;
under terms of lease, written instrument needed to be executed only if purchaser thought it appropriate. Brandon/Wiant Co. v.
Teamor (Ohio App. 8 Dist., 01-26-1998) 125 Ohio App.3d 442, 708 N.E.2d 1024, appeal not allowed 82 Ohio St.3d 1415,
694 N.E.2d 77. Landlord And Tenant 15
Although employee did not have actual authority in regard to lease agreement, where employee worked under title of zone
manager, was landlord's only contact concerning lease, informed landlord upon lease of second premises that he expected
cancellation of lease agreement of first premises, and soon thereafter informed landlord that extension of time before vacating
first premises was needed and that employer would continue to pay rent through that time, employee's communications with
regard to transaction were reflective of his authority to bind employer, and employer was estopped from denying binding
nature of employee's conduct. Ammerman v. Avis Rent A Car System, Inc. (Franklin 1982) 7 Ohio App.3d 338, 455 N.E.2d
1041, 7 O.B.R. 436. Principal And Agent 137(2)
A lease signed by an agent in his own name and without the written authority of his principal is unenforceable because it has
not been signed by the grantor as required by this statute. Hodesh v. Hallerman (Hamilton 1933) 45 Ohio App. 278, 186 N.E.
921, 14 Ohio Law Abs. 395, 39 Ohio Law Rep. 45.
Commercial tenant drafted lease agreement and specifically added language identifying other party as landlord's agent, and
thus, any ambiguity in agreement would be resolved against tenant. Robert's Auto Center, Inc. v. Helmick (Ohio App. 9 Dist.,
Summit, 02-12-2003) No. 21073, 2003-Ohio-640, 2003 WL 294354, Unreported, appeal not allowed 99 Ohio St.3d 1437,
789 N.E.2d 1118, 2003-Ohio-2902. Landlord And Tenant 43
Lease agreement, providing that wife was acting as agent for her husband as landlord and that she accepted agreement as
husband's agent and spouse, was void based on mutual mistake of fact as to ownership of the property, where wife
subsequently discovered that she was co-owner of the property at time of lease, and both wife and tenant were under
mistaken belief that husband was sole owner. Robert's Auto Center, Inc. v. Helmick (Ohio App. 9 Dist., Summit, 02-12-
2003) No. 21073, 2003-Ohio-640, 2003 WL 294354, Unreported, appeal not allowed 99 Ohio St.3d 1437, 789 N.E.2d 1118,
2003-Ohio-2902. Landlord And Tenant 27
28. ---- Covenants, leases
In a suit to obtain an injunction to enforce a restrictive personal covenant in a lease against the establishment and conduct of a
competing business in a nearby location, such injunction may properly be granted, when there is evidence from which it may
reasonably be found that a subsequent lessee from the common lessor had actual notice of such restriction and the intended
meaning and extent thereof, and thereupon in violation of such restrictive covenant established and conducted such a
competing business. Gillen-Crow Pharmacies, Inc. v. Mandzak (Ohio 1966) 5 Ohio St.2d 201, 215 N.E.2d 377, 34 O.O.2d
417.
Restrictive covenants are enforceable unless against public policy. Dixon v. Van Sweringen Co. (Ohio 1929) 121 Ohio St.
56, 166 N.E. 887, 7 Ohio Law Abs. 351, 29 Ohio Law Rep. 280.
Free gas provision in oil and gas lease, under which principal dwelling on leased premises is entitled to receive free gas, is a
real covenant which runs with the surface ownership of the leasehold tract. Sethi v. Antonucci (Ohio App. 7 Dist., 02-18-
1998) 126 Ohio App.3d 382, 710 N.E.2d 719. Mines And Minerals 79.5
As in other types of contracts, duty of landlord in commercial lease to mitigate damages once tenant has abandoned premises
stems from implied covenant of good faith and fair dealing. New Towne L.P. v. Pier 1 Imports (U.S.), Inc. (Ohio App. 6
Dist., 07-26-1996) 113 Ohio App.3d 104, 680 N.E.2d 644. Landlord And Tenant 195(1)
A covenant in a lease restricting the use of lessor's adjoining property is a personal covenant rather than one running with the
land, and as such is enforceable in equity against a lessee of the adjoining property if he has actual notice of the covenant.
Gillen-Crow Pharmacies, Inc. v. Mandzak (Ohio Com.Pl. 1964) 8 Ohio Misc. 47, 220 N.E.2d 852, 37 O.O.2d 60, affirmed 5
Ohio St.2d 201, 215 N.E.2d 377, 34 O.O.2d 417.
Under Ohio law, there was no implied covenant of continuous operation in commercial lease between shopping center and
anchor store; no one testifying on shopping center's behalf was prepared to say that issue of continuous operation obligation
had been discussed during lease negotiations, letters exchanged between parties in which “basic business terms” of lease
were set forth did not mention continuous operation obligation, and level of parties' sophistication with respect to real estate
transactions and experience with lease negotiations supported conclusion that, had these parties intended to agree to
continuous operation obligation, they would have said so explicitly in lease. Hamilton West Development, Ltd. v. Hills
Stores Co. (N.D.Ohio, 03-01-1997) 959 F.Supp. 434. Landlord And Tenant 45
Under Ohio law, implied covenants in leases are disfavored at law and are justified only when necessary to effectuate
intention of parties. Hamilton West Development, Ltd. v. Hills Stores Co. (N.D.Ohio, 03-01-1997) 959 F.Supp. 434.
Landlord And Tenant 45
29. ---- Validity generally, deeds
Grantor's transfer on death deed failed to validly effectuate a transfer of property upon grantor's death, requiring executor to
include subject property in inventory and appraisal of grantor's will, where transfer on death deed was not recorded prior to
grantor's death. In re Estate of Scott (Ohio App. 2 Dist., 11-04-2005) 164 Ohio App.3d 464, 842 N.E.2d 1071, 2005-Ohio-
5917. Executors And Administrators 66
Evidence did not support claim of initial transferee of property that subsequent transferee committed fraud by backdating
date on deed to supercede initial transferee's deed, for purposes of determining whether second deed was valid; second
transferee's counsel surmised that someone in his office took deed to be recorded, saw that date was incomplete, called office
to ascertain date, and then someone in recording office inadvertently placed wrong date on deed, second transferee stated he
did not change date, attorney stated that the deed was not out of his sight while transferee and transferor were in his office,
and attorney testified he did not know about prior attempted conveyance. Griffin v. Griffin (Ohio App. 12 Dist., Butler, 02-
17-2004) No. CA2003-03-076, No. CA2003-04-081, 2004-Ohio-698, 2004 WL 292087, Unreported. Deeds 211(3)
Medical records from 1985 through 1997 were too far removed in time to be relevant to father's competency to execute a
deed in 1973, and thus, were inadmissible in son's action to quiet title. Rutledge v. Wallace (Ohio App. 7 Dist., Carroll, 10-
07-2002) No. 02AP0770, 2002-Ohio-5372, 2002 WL 31243511, Unreported, appeal not allowed 98 Ohio St.3d 1463, 783
N.E.2d 521, 2003-Ohio-644. Deeds 203
A conveyance to A “and his children after him” with a habendum to A “and his heirs forever” is a conveyance to A in fee
simple; the granting clause and the habendum not being irreconcilably repugnant. Martin v. Jones (Ohio 1900) 62 Ohio St.
519, 43 W.L.B. 420, 57 N.E. 238. Deeds 124(1)
Deed made on two sheets of paper attached together is valid. Norman v. Shepherd (Ohio 1882) 38 Ohio St. 320.
Where trustee with knowledge of his cestui que trust makes a conveyance in derogation of trust and after undisturbed
possession and improvements made for fifty years there is a presumption that cestui que trust directed or acquiesced in
conveyance. Williams v. First Presbyterian Society in Cincinnati (Ohio 1853) 1 Ohio St. 478.
Release is regarded as a substantive mode of conveyance and equally with quit-claim is adapted to convey without
warranting title, even while stranger is in adverse possession. Hall's Lessee v. Ashby & Craven (Ohio 1839) 9 Ohio 96, 34
Am.Dec. 424.
A deed that does not pass legal title does not estop grantor from asserting title. Patterson's Lessee v. Pease (Ohio 1831) 5
Ohio 190.
It is indispensable to the validity of a grant that the grantee be a person in being at the time. Sloane v. McConahy (Ohio 1829)
4 Ohio 157. Deeds 13
Tenants in common can make joint deed. Doe ex dem. Wilkinson v. Fleming (Ohio 1826) 2 Ohio 301.
Title to real estate cannot be conveyed by an assignment indorsed on a deed. Bentley's Heirs, Lessee v. Deforest (Ohio 1826)
2 Ohio 221, 15 Am.Dec. 546.
Tenant in common can convey a part of his undivided estate. White's Lessee v. Sayre (Ohio 1825) 2 Ohio 110.
Valid deed cannot be made by writing it over a signature and seal made upon a blank or an empty sheet of paper. Ayres v.
Harness (Ohio 1824) 1 Ohio 368, 13 Am.Dec. 629.
Word “heirs” is not necessary in an exception contained in a grant and grantor retains all his interest in part excepted. Hay's
Lessee v Storrs, W 711 (1834).
Release of “Nichols and wife” is operative as a contract though invalid as a conveyance. Reynolds v Clark, W 656 (1834).
Construction of written contracts and instruments of conveyance is a matter of law. Point East Condominium Owners' Assn.
v. Cedar House Assoc. (Ohio App. 8 Dist., 06-19-1995) 104 Ohio App.3d 704, 663 N.E.2d 343, appeal not allowed 74 Ohio
St.3d 1458, 656 N.E.2d 952. Contracts 176(1)
Cardinal rule in construction of deeds is that parties' intention at time of execution of deed controls. Sedlak v. Solon (Ohio
App. 8 Dist., 05-30-1995) 104 Ohio App.3d 170, 661 N.E.2d 265, dismissed, appeal not allowed 74 Ohio St.3d 1418, 655
N.E.2d 738. Deeds 93
Courts presume that parties' intentions at time of execution of deed reside in language they choose to employ in the deed.
Sedlak v. Solon (Ohio App. 8 Dist., 05-30-1995) 104 Ohio App.3d 170, 661 N.E.2d 265, dismissed, appeal not allowed 74
Ohio St.3d 1418, 655 N.E.2d 738. Deeds 109
Where granting clause of deed conveying real estate to railroad contained no words of condition or forfeiture, contained no
reverter clause or provision for right of reentry, and only words of limitation, “to construct a railroad and for no other
purpose,” appeared in prefatory clause describing purpose of acquisition, intention of parties was to convey, and deed, in
effect, did convey, an indefeasible fee simple interest in property. Little Miami, Inc. v. Wisecup (Hamilton 1984) 13 Ohio
App.3d 239, 468 N.E.2d 935, 13 O.B.R. 292. Deeds 144(1)
Bank, which made no representation to purchasers with respect to amount of acreage bought, could not be held liable to
purchasers for negligent misrepresentation when they discovered another party owned one of ten acres they bought. James v.
Partin (Ohio App. 12 Dist., Clermont, 05-28-2002) No. CA2001-11-086, 2002-Ohio-2602, 2002 WL 1058152, Unreported,
appeal not allowed 96 Ohio St.3d 1516, 775 N.E.2d 857, 2002-Ohio-4950. Banks And Banking 100
It is the purpose of the habendum clause of a deed to define the estate which is conveyed. It is the duty of the court to give
effect to every clause contained in a deed and if possible, to read into the deed the intention of the parties. Bartholomew v.
Rothrock (Fayette 1935) 20 Ohio Law Abs. 513.
When a person executes and acknowledges a deed and delivers it to the recorder with unqualified instructions to record it, the
reasonable presumption is, in the absence of any rebutting circumstances, that he means thereby to transfer his title and to
rebut this presumption the proof must be very clear. Weinlein v. Bedford (Ohio Com.Pl. 1955) 138 N.E.2d 173, 75 Ohio Law
Abs. 439, affirmed 138 N.E.2d 178, 73 Ohio Law Abs. 378. Deeds 194(5)
Survivorship when created by act of a grantor in a deed, clearly expressed so as to show an intention to create this right, is not
contrary to the law of Ohio. In re Dennis' Estate (Ohio Com.Pl. 1928) 30 Ohio N.P.(N.S.) 118.
Under Ohio law, even assuming that daughter did not learn of her parents' gratuitous transfer of certain real property to her
until shortly before she executed deed conveying land back to parents, debtor's reservation, in this deed back to parents, of
life estate in subject realty was entirely inconsistent with her intent to reject acceptance of transfer by parents' original deed.
In re Hayes (Bkrtcy.N.D.Ohio, 12-02-2002) 293 B.R. 420. Deeds 63.1
30. ---- Assignment, leases
Landlord did not breach commercial lease by unreasonably withholding its consent to assignment, under lease that was
clearly limited by language restricting use of the space to an optician's office, where tenant did not present any prospective
tenants that would operate an optician's office. GMS Management Co., Inc. v. Vliet (Ohio App. 9 Dist., Summit, 02-08-2006)
No. 22807, 2006-Ohio-515, 2006 WL 287955, Unreported. Landlord And Tenant 75(3)
Assignee to tenant's lease for store in shopping center was authorized to exercise lease option to pay reduced rent due to
landlord's failure to fill anchor stores in shopping center; lease had been validly assigned, such that assignee became “tenant”
under lease. Wauseon Plaza Ltd. Partnership v. Wauseon Hardware Co. (Ohio App. 6 Dist., 03-31-2004) 156 Ohio App.3d
575, 807 N.E.2d 953, 2004-Ohio-1661. Landlord And Tenant 79(2)
This section relates only to the execution of a lease, and does not expressly or by implication relate to the assignment of a
lease, or provide a method by which it shall be done. Abraham v. Akron Sausage Co. (Summit 1927) 34 Ohio App. 285, 171
N.E. 78, 5 Ohio Law Abs. 162.
31. Power of attorney
Power of attorney conveying no present interest is void. Lawrence's Lessee v. McArter (Ohio 1840) 10 Ohio 37. Infants 5;
Principal And Agent 4
Fact that durable power of attorney that aunt gave to nephew limited the gifts that nephew could make to himself and his wife
to no more than $10,000 did not invalidate aunt's transfer of her real property to nephew and wife, even though value of the
property exceeded $10,000 and nephew signed the deed as attorney-in-fact; limitation potentially applied only to cash gifts,
power of attorney explicitly gave nephew the power to sell or dispose of aunt's real and personal property on such terms as he
saw fit, and deed recited that the transfer was “for valuable consideration paid,” rather than that it was a gift. Estate of Niemi
v. Niemi (Ohio App. 11 Dist., 05-01-2009) No. 2008-T-0082, 2009 -Ohio- 2090, 2009 WL 1176897, Unreported. Principal
and Agent 69(7)
Powers of attorney, executed by homeowners granting power of attorney to their son, signed by notary public who witnessed
the signature of each homeowner, substantially complied with statute requiring a power of attorney relating to an interest in
real property to be acknowledged as set forth in statute governing acknowledgement of mortgages, and thus, mortgage signed
by son acting through the powers of attorney was valid, even though the mortgage stated that it was signed by homeowners
but was never signed by the homeowners individually. Huntington Natl. Bank v. Kazmaier (Ohio App. 6 Dist., 02-15-2008)
2008-Ohio-603, 2008 WL 399304. Principal And Agent 10(2)
Where power of attorney executed by husband, who was suffering from a terminal illness, authorized wife to grant a
mortgage on real property owned jointly by the parties, and the power of attorney was properly signed, acknowledged, and
certified as required by Ohio law, wife's signature on the mortgage conveyed her husband's interest in the property as fully as
if he had executed the mortgage in person. In re Ingersoll (Bkrtcy.S.D.Ohio, 03-23-2009) 2009 WL 779055. Mortgages 56;
Principal and Agent 63(1)
Under Ohio law, as predicted by the bankruptcy court, where wife signed mortgage both on her own behalf and, pursuant to a
valid, previously recorded power of attorney, on behalf of husband, wife's signature on the mortgage alone was sufficient to
mortgage husband's one-half interest in the property and, thus, the mortgage was validly executed in its entirety, even though
the notary public's certificate of acknowledgement stated that both joint mortgagors personally appeared and acknowledged
the mortgage when in fact only the wife, as attorney-in-fact, did so on behalf of both; the reference to husband's appearance
was surplusage and, as such, did not affect the validity of the acknowledgement. In re Ingersoll (Bkrtcy.S.D.Ohio, 03-23-
2009) 2009 WL 779055. Acknowledgment 41; Mortgages 56; Mortgages 59; Principal and Agent 63(1)
32. ---- Description, deeds
Property owners were not entitled to a laches defense, in action alleging that owners' barn a violated the setback deed
restrictions; construction of the barn began in November and was completed a few weeks later, trustee first observed the barn
was in apparent violation of the setback provision in late March, trustee wrote to parcel owners in early April reminding them
of the deed restrictions, trustee spoke with owner about the deed violation, and lawyer wrote owners a letter on behalf of
trustees in June ordered that the barn be relocated. Mitchell v. Bookman (Ohio App. 5 Dist., Richland, 09-15-2006) No. 05
CA 118, 2006-Ohio-4834, 2006 WL 2663483, Unreported. Covenants 110
Contract for sale of land did not exist, and thus intended transferee could not bring an interference with contract claim against
subsequent purchaser, where contract did not contain a description of the property. Griffin v. Griffin (Ohio App. 12 Dist.,
Butler, 02-17-2004) No. CA2003-03-076, No. CA2003-04-081, 2004-Ohio-698, 2004 WL 292087, Unreported. Torts 242
Property deed, that did not include a description of the property, was not rendered enforceable by facts that deed did list
intended transferee's tax-mailing address as the subject property and that transferor did not own any other property, and thus
deed was subject to being set aside; listing of transferee's tax-mailing address was irrelevant, and it was not apparent from
deed that transferor did not own other property. Griffin v. Griffin (Ohio App. 12 Dist., Butler, 02-17-2004) No. CA2003-03-
076, No. CA2003-04-081, 2004-Ohio-698, 2004 WL 292087, Unreported. Deeds 38(1)
Regardless of any deficiencies in mortgage as to description of property subject to mortgage, mortgage lender, which had
acted reasonably and in good faith in reliance on information supplied by title company, qualified as good faith transferee,
which was entitled to lien on property to extent its loan proceeds were used to pay off prior mortgage loans. In re Farrell
(Bkrtcy.S.D.Ohio, 09-04-2001) 269 B.R. 181. Bankruptcy 2701
Parties intended that mortgage would include all three parcels that comprised street address stated in mortgage document,
despite debtor-mortgagors' testimony, that they had thought that mortgage would include only parcel on which their home
was located, where debtors' testimony was contradicted by their testimony one year earlier at Rule 2004 examination that
they had meant to grant mortgagee a lien in all three parcels, as well as by appraisal prepared in connection with mortgage
loan, which was conducted upon all three parcels. In re Farrell (Bkrtcy.S.D.Ohio, 09-04-2001) 269 B.R. 181. Mortgages 129
Under Ohio law, property description in mortgage was sufficient to grant mortgagee an interest in all three adjacent parcels
owned by debtor-mortgagors, even though only one such parcel was identified by metes and bounds description, where
another parcel was identified by parcel number and all three parcels comprised street address indicated at start of mortgage.
In re Farrell (Bkrtcy.S.D.Ohio, 09-04-2001) 269 B.R. 181. Mortgages 129
A deed or mortgage may not be rejected for recording because the description of the premises affected is supplied by
photostatic or photographic copy clipped or pinned to the instrument at the proper place. 1956 OAG 6379.
33. Constitutional issues
Amended Ohio statute specifying that even a defectively executed mortgage, if properly recorded, will place bona fide
purchaser on constructive notice of encumbrance, while remedial in nature, could not be applied retroactively to prevent
trustee from avoiding, in exercise of his strong-arm powers as hypothetical bona fide purchaser, a mortgage that was not
properly signed in presence of two witnesses, where mortgagor's Chapter 7 case was filed, and trustee's strong-arm rights had
already vested, before this amended Ohio statute went into effect. In re Potts (Bkrtcy.N.D.Ohio, 10-16-2006) 353 B.R. 874.
Bankruptcy 2705; Mortgages 171(4)
Amended Ohio statute specifying that even a defectively executed mortgage, if properly recorded, will place a bona fide
purchaser on constructive notice of encumbrance was “remedial” in nature, as purporting to cure defects in acknowledgement
or attestation in order to give effect to manifest intention of parties, and could thus be applied retroactively to prevent
avoidance of defectively acknowledged mortgage by bankruptcy trustee, unless trustee's rights had already vested when
amended statute went into effect. In re Potts (Bkrtcy.N.D.Ohio, 10-16-2006) 353 B.R. 874. Bankruptcy 2705; Mortgages
171(4)
Ohio statute eliminating two-witness requirement for execution of mortgage, and providing that any mortgage executed prior
to statute's effective date and not executed in presence of two witnesses would be deemed properly executed, could not
constitutionally be applied retroactively in Chapter 7 case which was filed prior to statute's effective date to impair trustee's
vested right to avoid, in exercise of strong-arm powers, a mortgage executed in presence of less than two witnesses. In re
Carte (Bkrtcy.S.D.Ohio, 12-04-2003) 303 B.R. 338. Bankruptcy 2704; Mortgages 74
Former Ohio statute providing that every recorded mortgage was irrebuttably presumed to have been properly executed was
unconstitutional, as having been enacted in violation of “one subject” rule as part of voluminous bill amending, enacting or
repealing approximately 53 provisions of the Ohio Revised Code, on such diverse topics as government, criminal procedure,
liquor, motor vehicles, public utilities and taxation. In re Carte (Bkrtcy.S.D.Ohio, 12-04-2003) 303 B.R. 338. Mortgages 3;
Statutes 107(2)
The law of real property remains under the constitution a matter of state law. Phillips Petroleum Co. v. Mississippi
(U.S.Miss. 1988) 108 S.Ct. 791, 484 U.S. 469, 98 L.Ed.2d 877, rehearing denied 108 S.Ct. 1760, 486 U.S. 1018, 100 L.Ed.2d
221.
34. Mortgage foreclosure
A provision in a residential mortgage contract requiring a defaulting borrower to pay a lender's reasonable attorney fees as a
condition of terminating pending lender-initiated foreclosure proceedings on a defaulted loan and reinstating the loan is not
contrary to Ohio statutory or decisional law or against Ohio public policy. Wilborn v. Bank One Corp. (Ohio, 02-03-2009)
2009 WL 279041. Mortgages 316; Mortgages 581(2)
Borrowers who defaulted on residential mortgages did not have an absolute right to reinstatement of the loans, and thus
provisions in the mortgage contracts, requiring borrowers to pay lenders' attorney fees as a condition of terminating pending
lender-initiated foreclosure proceedings and reinstating loans, did not violate public policy and were enforceable; borrowers'
obligation to pay the fees arose only upon their voluntary exercise of the contractual right to reinstate the mortgage loan, a
right gained in exchange for lenders' surrender of the present right to foreclosure. Wilborn v. Bank One Corp. (Ohio, 02-03-
2009) 2009 WL 279041. Mortgages 316; Mortgages 581(2)
The rationale for the rule that a provision in a mortgage or promissory note that awards attorney fees upon the enforcement of
the lender's rights when the borrower defaults is unenforceable, is that the stipulation to pay attorney fees operates as a
penalty to the defaulting party and encourages litigation to establish either a breach of the agreement or a default on the
obligation. Wilborn v. Bank One Corp. (Ohio, 02-03-2009) 2009 WL 279041. Bills and Notes 110; Mortgages 581(2)
Residential mortgage contracts were not contracts of adhesion, and thus, provisions in contracts requiring borrowers to pay
lenders' attorney fees as a condition of terminating pending lender-initiated foreclosure proceedings and reinstating loans,
were enforceable; uniform mortgage forms used to create contracts between the borrowers and lenders were created by a
process that brought together many sophisticated parties with competing interests and significant bargaining power, including
virtual proxies for the interests of the borrowers. Wilborn v. Bank One Corp. (Ohio, 02-03-2009) 2009 WL 279041.
Mortgages 316; Mortgages 581(2)
Trial court's error, if any, in refusing to admit mortgagor's evidence regarding its attempts to make up payments to avoid
default of mortgage, or evidence relating to alleged fraud or illegality by mortgagee's assignee, during hearing on validity of
mortgage on motion to vacate appointment of receiver in foreclosure action, was harmless, given that it was undisputed that
mortgagor stopped making regular mortgage payments, proffered evidence only showed, at best, mortgagor's attempt to make
partial payment that was ineffective to cure any default, and alleged fraud was inadmissible for purposes of invalidating
mortgage. Harajli Mgt. & Invest., Inc. v. A&M Invest. Strategies, Inc. (Ohio App. 6 Dist., 06-16-2006) 167 Ohio App.3d
546, 855 N.E.2d 1262, 2006-Ohio-3052. Mortgages 578
Ohio law, rather than New York law, governed mortgage foreclosure proceeding, even though promissory notes secured by
mortgage specified that New York law applied, given that mortgage itself specified that law of place where premises was
located governed, and premises was located in Ohio. Harajli Mgt. & Invest., Inc. v. A&M Invest. Strategies, Inc. (Ohio App.
6 Dist., 06-16-2006) 167 Ohio App.3d 546, 855 N.E.2d 1262, 2006-Ohio-3052. Mortgages 380
Mortgagor's evidence regarding claims of fraud and illegality by mortgagee's assignee was not admissible in hearing on
validity of mortgage for purposes of appointment of receiver in foreclosure action, given that mortgagor's evidence was only
relevant to the enforcement of the mortgage and not whether the mortgage was valid. Harajli Mgt. & Invest., Inc. v. A&M
Invest. Strategies, Inc. (Ohio App. 6 Dist., 06-16-2006) 167 Ohio App.3d 546, 855 N.E.2d 1262, 2006-Ohio-3052. Mortgages
469
In mortgage foreclosure proceeding instituted against home purchaser, holders of another mortgage and others, judgment
entry granting summary judgment in favor of mortgage holders did not require certification language to make the order final
and appealable, where rights and liabilities of all the other parties interested in matter had been resolved. State Sav. Bank v.
Gunther (Ohio App. 3 Dist., 04-23-1998) 127 Ohio App.3d 338, 713 N.E.2d 7, dismissed, appeal not allowed 83 Ohio St.3d
1429, 699 N.E.2d 945. Appeal And Error 79(1)
A mortgage lender has no duty to a guarantor to quickly foreclose on defaulted properties in order to preserve their values
where the lender is not in possession of the properties. Buckeye Fed. S. & L. Assn. v. Guirlinger (Ohio 1991) 62 Ohio St.3d
312, 581 N.E.2d 1352.
The defense of impairment of collateral may not be raised by a guarantor where the guarantor ratifies the actions of the
debtor who seeks to forestall foreclosure, where the lender, although having the right to call the loan due, delays foreclosure
because the payments are current while the collateral deteriorates due to lack of maintenance. Buckeye Fed. S. & L. Assn. v.
Guirlinger (Ohio 1991) 62 Ohio St.3d 312, 581 N.E.2d 1352.
A purchaser of mortgaged real property under a land contract who has not expressly assumed the seller's mortgage or made
payments to the bank, owes no debt to the bank, is not liable on the mortgage, and thus does not stand in a debtor-creditor
relation to the bank; consequently, when the purchaser defaults on the contract and files in bankruptcy to prevent the bank
from foreclosing the seller's unpaid mortgage, the purchaser cannot attempt to cure the default through his bankruptcy
repayment plan. In re Jones (Bkrtcy.N.D.Ohio 1989) 98 B.R. 757.
Mortgage foreclosure action is not a “special proceeding” within meaning of statute providing that final and appealable
orders include orders that affect a substantial right made in a special proceeding; to constitute “special proceeding,” statutory
definition required that the proceeding not have been denoted prior to 1853 as an action at law or a suit in equity, and
foreclosure actions were in existence prior to 1853. Second Nat. Bank of Warren v. Walling (Ohio App. 7 Dist., Mahoning,
07-23-2002) No. 01-C.A.-62, 2002-Ohio-3852, 2002 WL 1746496, Unreported. Mortgages 570
Judgment entered in mortgage foreclosure action, which awarded monetary amount and ordered foreclosure sale of the
property, was not a final and appealable order, where judgment did not resolve fundamental issues of the number, priority
and value of other outstanding liens, complaint had named other lienholders as defendants, and lienholders filed answers and
cross-claims, requesting marshaling and determination of status and priority of all outstanding liens. Second Nat. Bank of
Warren v. Walling (Ohio App. 7 Dist., Mahoning, 07-23-2002) No. 01-C.A.-62, 2002-Ohio-3852, 2002 WL 1746496,
Unreported. Mortgages 570
Genuine issue of material fact as to whether mortgagee knew that lessee had actual possession of leased premises, such that
could have provided constructive notice of lessee's interest sufficient to defeat mortgagee's claim of bona fide purchaser
status, precluded summary judgment in favor of mortgagee on his claim in foreclosure action that he obtained his mortgage in
good faith, for value, without actual or constructive notice of unrecorded lease. Peck v. A & N Serv. Co., Inc. (Ohio App. 8
Dist., Cuyahoga, 03-23-2006) No. 86524, No. 87118, 2006-Ohio-1358, 2006 WL 728757, Unreported. Judgment 181(25)
Creditor's business records, which were referred to in affidavits filed to support creditor's summary judgment motion in
foreclosure action brought against debtor who defaulted on payments owed on note that was secured by mortgage, were
admissible under business records exception to hearsay rule, where affiants testified that they were employees of creditor
who were familiar with debtor's account and records kept therein and records were kept in course of creditor's regularly
conducted business activity. Charter One Mortg. Corp. v. Keselica (Ohio App. 9 Dist., Lorain, 08-18-2004) No.
04CA008426, 2004-Ohio-4333, 2004 WL 1837211, Unreported, stay denied 103 Ohio St.3d 1524, 817 N.E.2d 408, 2004-
Ohio-5852, appeal not allowed 104 Ohio St.3d 1441, 819 N.E.2d 1124, 2004-Ohio-7033. Evidence 351; Evidence 373(1);
Judgment 185.1(3)
Mortgagee was entitled to foreclose on mortgagors' property based on mortgagors' failure to make payments as required
under terms of note, where copies of note and mortgage named the parties, documents contained signatures of mortgagors,
and mortgagee's employee stated that mortgage documents were true and accurate, that the principal balance due was
$57,254.85 with seven percent interest rate, and that account was in default. The Leader Mtge. Co. v. Haught (Ohio App. 9
Dist., Lorain, 03-24-2004) No. 03CA008318, 2004-Ohio-1417, 2004 WL 573833, Unreported. Mortgages 395
Mortgagor's reliance on allegations in mortgagee's foreclosure complaint to support mortgagor's claim of improper non-
acceptance of tendered payments was insufficient to raise a genuine issue of material fact as to issue of default, and thus
mortgagee was entitled to summary judgment. Wells Fargo Bank v. Vandenberg (Ohio App. 5 Dist., Muskingum, 04-03-
2003) No. CT2002-0030, 2003-Ohio-1896, 2003 WL 1875572, Unreported. Judgment 181(25)
35. Arbitration clauses in mortgages
Arbitration agreement executed at same time as mortgage loan transaction was not substantively unconscionable under Ohio
law due to lack of mutuality and the costs associated with arbitration; underlying mortgage transaction was supported by
consideration, and agreement gave arbitrator authority to determine which party was responsible for paying costs. Anderson
v. Delta Funding Corp. (N.D.Ohio, 01-24-2004) 316 F.Supp.2d 554. Alternative Dispute Resolution 134(6)
Arbitration agreement executed at same time as mortgage loan transaction was not procedurally unconscionable under Ohio
law; although mortgagor was allegedly an unsophisticated consumer who did not understand the agreement's language and
was not represented by counsel, she received notice several days prior to closing that she would be asked to enter into such an
agreement, initialed each page of the agreement at closing and signed her full name on the last page acknowledging receipt of
the agreement and opportunity to review it, and agreement's language was not particularly complex and its terms were not
typed in abnormally fine print. Anderson v. Delta Funding Corp. (N.D.Ohio, 01-24-2004) 316 F.Supp.2d 554. Alternative
Dispute Resolution 134(6)
R.C. § 5301.01, OH ST § 5301.01
Current through 2010 File 21 of the 128th GA (2009-2010) , apv. by 3/23/10 and filed with the Secretary of State by
3/23/10.
(c) 2010 Thomson Reuters
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10.2.3.1.

V2Westlaw Delivery Summary Report for MARKEY,JUSTIN P

Date/Time of Request: Thursday, March 25, 2010 18:05 Central

Baldwin's Ohio Revised Code Annotated Currentness

2001 H 279, § 3, eff. 2-1-02, reads:

HISTORICAL AND STATUTORY NOTES

Pre-1953 H 1 Amendments: 120 v 229; RS 4106

Deeds 26, 47.

25 ALR 2nd 1124, Sufficiency of Certificate of Acknowledgment.

29 ALR 919, Sufficiency of Certificate of Acknowledgment.

OH Jur. 3d Adjoining Landowners § 25, Execution and Recording of Agreement.

OH Jur. 3d Agency & Independent Contractors § 31, Creation Formalities.

OH Jur. 3d Agency & Independent Contractors § 35, Recordation.

OH Jur. 3d Courts & Judges § 215, Certificates and Certified Copies.

OH Jur. 3d Deeds § 25, Signature.

OH Jur. 3d Deeds § 26, Acknowledgment.

OH Jur. 3d Deeds § 28, Attestation.

OH Jur. 3d Deeds § 29, Attestation--Competency to Attest.

OH Jur. 3d Frauds, Statute of § 113, Authority of Agent, Generally.

OH Jur. 3d Landlord & Tenant § 43, Necessity of Writing.

OH Jur. 3d Landlord & Tenant § 44, Signatures.

OH Jur. 3d Landlord & Tenant § 45, Acknowledgments.

OH Jur. 3d Landlord & Tenant § 46, Attestation.

OH Jur. 3d Landlord & Tenant § 48, Recording--Memorandum of Lease.

OH Jur. 3d Landlord & Tenant § 124, Trial--Authentication of Evidence.

OH Jur. 3d Landlord & Tenant § 477, Formal Requisites for Renewal.

OH Jur. 3d Mortgages & Deeds of Trust § 92, Signature.

OH Jur. 3d Mortgages & Deeds of Trust § 373, Matters Considered on Appeal.

OH Jur. 3d Mortgages & Deeds of Trust § 467, Attestation and Acknowledgment.

Ohio Forms Legal and Business § 1:26, Execution and Acknowledgment.

Ohio Forms Legal and Business § 1:27, Recordation.

Ohio Forms Legal and Business § 1C:5, Execution and Recordation.

Ohio Forms Legal and Business § 2:12, Execution--Attestation--Acknowledgment.

Ohio Forms Legal and Business § 2:14, Recordation.

Ohio Forms Legal and Business § 2:17, Introduction.

Ohio Forms Legal and Business § 2:72, Introduction.

Ohio Forms Legal and Business § 2:73, Form Drafting Principles.

Ohio Forms Legal and Business § 2A:5, Execution and Attestation.

Ohio Forms Legal and Business § 2A:7, Recordation.

Ohio Forms Legal and Business § 3:10, Formal Requirements.

Ohio Forms Legal and Business § 3:15, Drafting a Mortgage.

Ohio Forms Legal and Business § 3:65, Satisfaction of Mortgage.

Ohio Forms Legal and Business § 3:67, Introduction.

Ohio Forms Legal and Business § 4C:8, Formal Requirements.

Ohio Forms Legal and Business § 6:20, Form Drafting Principles.

Ohio Forms Legal and Business § 8:54, Farm Lease.

Ohio Forms Legal and Business § 8:78, Residential Lease--Unfurnished House.

Ohio Forms Legal and Business § 12B:2, Form Drafting Principles.

Ohio Forms Legal and Business § 12B:3, Acknowledgment and Recordation.

Ohio Forms Legal and Business § 2:130, Definition.

Ohio Forms Legal and Business § 2:131, General Background.

Ohio Forms Legal and Business § 25:45, Memorandum of Trust.

Ohio Forms Legal and Business § 25:46, Formal Requirements.

Ohio Forms Legal and Business § 4B:45, Ground Lease.

Ohio Forms Legal and Business § 4B:76, Certificate of Satisfaction of Lien.

Ohio Forms and Transactions § 16:1, Deeds and Deed Forms.

Ohio Forms and Transactions § 18:1, Execution of Leases.

Ohio Forms and Transactions § 18:2, Recording of Leases.

Ohio Forms and Transactions § 22:2, Notarial Acts.

Ohio Forms and Transactions § 24:3, Recording Powers of Attorney.

Ohio Forms and Transactions § 27:3, Waiver or Release of Mortgage.

Ohio Forms and Transactions § 27:5, Release of Easement.