Floyd v. Clyne

• Decision Date: 18 December 1958
• Citation: 154 N.E.2d 771,108 Ohio App. 16
• Parties: , 80 Ohio Law Abs. 225, 9 O.O.2d 93 Florence D. FLOYD, Guardian of Estate of Arthur Dunford, an Incompetent, Plaintiff-Appellant, v. William Patrick CLYNE, John F. McCrone, and Leslie R. Monroe, Treasurer, Cuyahoga County, Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 16

108 Ohio App. 16

154 N.E.2d 771, 80 Ohio Law Abs. 225, 9 O.O.2d 93

Florence D. FLOYD, Guardian of Estate of Arthur Dunford, an Incompetent, Plaintiff-Appellant, v. William Patrick CLYNE, John F. McCrone, and Leslie R. Monroe, Treasurer, Cuyahoga County, Defendants-Appellees.

Court of Appeals of Ohio, Cuyahoga County.

Dec. 18, 1958.

Clarence J. Oviatt, Lody Huml, Cleveland, for plaintiff-appellant.

Clyne, Kane, Ray & Talty, Cleveland, for defendants-appellees.

PETREE, Presiding Judge, of the Tenth District, sitting by designation.

This is an appeal on questions of law in a case which arose in the Court of Common Pleas of Cuyahoga County and which was brought by the guardian of Arthur Dunford, an incompetent, against Clyne and McCrone, defendants, claiming that they had secured a quit-claim deed from Dunford which was fraudulent, null, and void, and seeking an order from the court to require defendant Monroe, County Treasurer, to pay to plaintiff $2,332.32, remaining from a tax sale on 18.04 acres of land in Cuyahoga County.

Dunford died before the cause came to trial, and the Court of Common Pleas revived the cause in the name of plaintiff, Florence D. Floyd, who had been appointed administratrix of the estate of Arthur Dunford. Defendants Clyne and McCrone had filed an answer and cross-petition also seeking the surplus funds in the hands of the County Treasurer. The trial court granted the motion of defendants Clyne and McCrone for judgment at the close of the opening statement and awarded judgment to said defendants on their cross-petition.

Apparently, the court was relying upon the case of Czako v. Orban, 133 Ohio St. 248, 13 N.E.2d 121, the syllabus of which reads as follows:

'The right to cancel a deed obtained from a grantor by mistake, fraud, duress, or undue influence descends to his heirs if it exists in the ancestor unimpaired at the time of his death.'

The instant case should be distinguished from Czako v. Orban, supra, for the title did not exist in Arthur Dunford at the time of his death or at the time of the purported quit-claim deed to defendants Clyne and McCrone. Months before the purported quit-claim deed, the 18.04 acres of land had been forfeited to the state of Ohio. The administratrix had tendered the $100 admittedly paid by Clyne and McCrone and had asked the court to grant her the surplus over and above the amount required by the state to pay the taxes on the landforfeiture sale of July 13, 1953, the property having been forfeited to the state about March 13, 1953, while the purported deed was dated July 11, 1953.

In Skehan v. Larkin, 41 Ohio App. 85, 179 N.E. 425, Paragraphs 2 and 3 of the headnote are as follows:

'2. Right of action to set aside gifts of personal property by decedent only passed to personal representative who is real party in interest (Sections 10673 and 10678,...