Metz v. Betzner

• Decision Date: 04 February 1946
• Citation: 77 Ohio App. 320,67 N.E.2d 651
• Parties: METZ et al. v. BETZNER et al.
• Court: Ohio Court of Appeals

67 N.E.2d 651

77 Ohio App. 320

METZ et al. v. BETZNER et al.

Court of Appeals of Ohio, First District, Hamilton.

February 4, 1946

Syllabus by the Court.

1. Entry of dismissal in declaratory judgment suit involved no action of the court and recitals of settlement therein do not amount to a judgment upon which to invoke the doctrine of res adjudicata, but the parties are left in position as though no action had ever been commenced.

2. Where adjoining owner not only acquires and consents but commissions owner of adjoining parcel to acquire the adjoining lands and construct and improve a driveway providing entry solely on his land, curving over solely on the land of the adjoining owner and proceeding partly on the lands of both for purposes of ingress and egress to and from both parcels, such facts give rise to a reciprocal easement appurtenant to both parcels of land and passing by deed according to law.

Bert H. Long, Milton M. Bloom, and Ratterman, Cowell &amp Fletcher, all of Cincinnati, for appellants.

Robert Adair Black, of Cincinnati, for Clarence W. Betzner.

Oliver g. Bailey and William M. Fridman, both of Cincinnati, for Daisy M. Betzner, Daisy Idella Betzner Sweeney, and Clifford H. Sweeney.

HILDEBRANT Presiding Judge.

Trial de novo, the prayer of the amended petition being for the specific performance of a contract entered into on April 1, 1943, for the sale of real estate by Daisy M. Betzner, vendor, to plaintiffs as vendee. Vendor's title was derived from the will of her deceased husband Walter T. Betzner, who died February 3, 1942, and the deed of her daughter, defendant Daisy Idella Sweeney, and her husband. Item 5 of the will reads as follows:

'Item 5. I give, bequeath and devise the rest residue and remainder of my estate to my beloved wife Daisy M. Betzner and my beloved daughter Daisy Idella Betzner, all the rest, residue and remainder of my estate by the same, real, personal and mixed and wheresoever situated which I now have or may be hereafter entitled, the same to be in fee simple, save and except should my beloved wife, Daisy M. Betzner, again marry, then and in that event she should forfeit her interest in all the real estate then owned and the whole of said real estate to become the property of and vest in fee simple in my beloved daughter, Daisy Idella Betzner.'

Title to the real estate is at present in defendant Dr. Clarence W. Betzner, by virtue of a deed from vendor, through her daughter and husband, as the result of a settlement agreement between them and dismissal of a declaratory judgment suit pending in the Probate Court prior to date of this contract, wherein defendant Dr. Clarence W. Betzner was plaintiff and Daisy M. Betzner and Daisy Idella Sweeney, individually and as executrices of the estate of Walter T. Betzner, deceased, were defendants. The gist of the action was that certain intangibles inventoried in the estate of Walter T. Betzner were acquired with the funds of plaintiff while Walter T. Betzner was acting as confidential business and financial agent of his brother, handling all of his funds in joint accounts at different banks and financial institutions and converted to his own use, with a subsequent failure to account therefor. In the body of the petition the following appears:

'Plaintiff visited his said brother at Deaconess Hospital, Cincinnati, Ohio, and in the presence of his wife, Daisey M. Betzner, one of the defendants herein, acknowledged and admitted his failure to properly account for the funds and securities entrusted to his care and further, that the real estate, situate and located on Adams Road, Hamilton County, Ohio, and listed and described in the inventory filed in the estate of the said Walter T. Betzner, deceased, in truth and in fact belonged to the plaintiff herein.'

The prayer of the petition was:

'Wherefore plaintiff prays for a declaratory judgment determining that said defendants, have no right, title and/ or interest in the stocks and bonds hereinBefore fully described and set forth; that the said stocks and bonds, listed, appearing and described in the inventory of the estate of Walter T. Betzner, deceased, is the property of the plaintiff herein, and for all such other and further relief to which plaintiff may be entitled to in the premises.'

Defendant Daisy M. Betzner denies the above allegation with reference to the real estate, and further denies that a settlement between Dr. Clarence W. Betzner and Walter T. Betzner in 1939 was only partial, as claimed by Dr. Clarence W. Betzner.

In 1932, Walter T. Betzner, who in the handling of his brother's finances for many years acted virtually as an alter ego, acquired two parcels of land on Adams Road, Mt. Healthy, taking title to one in his own name and the other in the name of Dr. Clarence W. Betzner, and attended to constructing two dwellings and other buildings and appurtenances thereon, including a common driveway, entering over the land of Dr. Clarence W. Betzner, and curving over on the land of Walter T. Betzner and back to a point of separation toward the rear of the property of each.

On May 24, 1943, plaintiffs made proper tender and demand for deed on Daisy M. Betzner, who failed to comply therewith.

On June 25, 1943, the defendants having reached a settlement agreement, carried it into effect by the dismissal of the declaratory judgment suit and a partition suit directed at the so-called Vine Street property and payment of $11,000 by Dr. Clarence M. Betzner to Daisy M. Betzner, who deeded the real estate here in question to Dr. Clarence M. Betzner through Daisy Idella Sweeney and husband, thence to Dr. Clarence W. Betzner.

The entry of dismissal of the declaratory judgment suit is as follows:

'All controversial matters herein having been amicably arranged, adjusted and fully settled between the parties hereto and especially but not exclusively the parties hereto having amicably partitioned among themselves the real estate (inventoried in the estate of Walter T. Betzner, deceased) consisting of 5.07 acres of land situate on Adams Road, Mt. Healthy, Hamilton County, Ohio, and being known, described and numbered 2109 on said Adams Road as disclosed by the records in the Recorder's office of Hamilton County, Ohio.

'This action is dismissed at the costs of the defendants.

'Record waived.'

Clarence W. Betzner claims to have had senior and superior equities in the real estate, by virtue of the breaches of trust of Walter T. Betzner prior to the contract and that the doctrine of lis pendens applied in the declaratory judgment suit, which merged into the consent judgment of June 25, 1943, which amounted to an amicable partition of the real estate and became res adjudicata as to his equitable estate therein, and, further, that the contract sued upon is incapable of specific performance because Daisy M. Betzner took only a life estate in the undivided one-half interest under the will and her daughter was not a party to the contract.

The Court has no difficulty in finding that Daisy M. Betzner took a fee simple title under the will of Walter T. Betzner to one-half the real estate, and on obtaining the deed of her daughter and husband for her one-half interest, held the full fee simple title on April 1, 1943, the date of the contract of sale.

The Court further finds that the entry of dismissal involved no action of the court and left the parties standing as though no action had ever been commenced. State ex rel. Cash v. Rose, 136 Ohio St. 143, 24 N.E.2d 455; State ex rel. Strong v. Cook, 124 Ohio St. 478, 179 N.E. 352, 79 A.L.R. 687; Brown v. Brown, 70 Ohio App. 41, 44 N.E.2d 749; Siegfried v. New York, L. E. & W. R. Co., 50 Ohio St. 294, 34 N.E. 331; Welsh v. Pennsylvania Co., 53 Ohio St. 670, 44 N.E. 1150; Goldstein v. Klivans, Inc., 34 O.L.R. 576. See, also: 14 Ohio Jur., par. 2, p. 315, and par. 12, p. 327. The argument that an amicable partition is effected by the entry amounting to a judgment by the court must fail because the real estate here involved was not held by tenants in common, and the requirements of section 12033, G.C., relating to amicable partition could not be met, hence, the term of amicable partition cannot be accurately applied to describe the agreement of settlement.

Discussion of lis pendens and doctrines of notice are unnecessary, since it appears that all parties became aware of the existence of the conflicting claims of the others prior to the dismissal of the declaratory judgment suit, so that whatever was done took place with actual knowledge. It therefore appears...