Morr v. Crouch

• Decision Date: 02 July 1969
• Docket Number: No. 68-563,68-563
• Parties: , 48 O.O.2d 43 In re Appropriation of Lands of Crouch. MORR, Dir. of Dept. of Natural Resources, et al., Appellants, v. CROUCH, Exr., Appellee.
• Court: Ohio Supreme Court

Page 24

19 Ohio St.2d 24

249 N.E.2d 780, 48 O.O.2d 43

In re Appropriation of Lands of Crouch.

MORR, Dir. of Dept. of Natural Resources, et al., Appellants, v. CROUCH, Exr., Appellee.

No. 68-563.

Supreme Court of Ohio.

July 2, 1969.

Syllabus by the Court

1. An order of settlement entered upon the journal of the court in a land appropriation case has no legal effect per se.

2. An attorney who is without special authorization has no implied or apparent authority, solely by virtue of his general retainer, to compromise and settle his client's claim or cause of action.

3. Where the power claimed for an attorney is to sell real estate, the agent's authority must be expressly given before a contract for the sale of land will bind the client.

4. Negligence or inaction alone is insufficient to show ratification of an agent's unauthorized act, but ratification must follow knowledge of the facts.

On September 17, 1964, the state of Ohio, through the Department of Natural Resources, filed a certificate to appropriate real estate, of which Ruth E. M. Crouch was the sole owner in fee simple. On December 2, 1964, the Probate Court of Guernsey County set the date of the appropriation trial as January 18, 1965.

On January 11, 1965, Charles Moore, the landowner's attorney of record, and John Crouch, the landowner's husband, met with the Probate Court judge in his chambers and discussed a settlement of the matter, with the assistant attorney general participating in the conference via telephone. Ruth E. M. Crouch was not present. A settlement figure of $14,200 was arrived at during this conference and a document captioned 'Journal Entry-Settlement' was prepared. This document was later signed by the court, the assistant attorney general, and by attorney Moore over the words 'Accepted by/for Landowners,' and journalized by the court on January 15, 1965.

On January 17, 1965, the landowner and her husband received by mail an unsigned copy of the 'journal entry-settlement,' without any letter of enclosure purporting to explain the paper. Three months later the Probate Judge mailed a letter to the landowner informing her that the $14,200 was on deposit with the court. This money was never claimed by the landowner.

A certified copy of the journal entry was filed with the Auditor of Guernsey County, who transferred the premises to the state of Ohio on his records, and then delivered the journal entry to the Recorder of Guernsey County, who recorded it in his official Record of Deeds.

On August 8, 1966, Ruth E. M. Crouch filed a motion to vacate the journal entry of settlement. In the affidavit supporting the motion she stated that she was not present at the settlement conference, that her husband had no authority to settle for her, and that the entry was made without her consent.

On March 4, 1967, the landowner died. Her husband, John Crouch, as executor and sole heir of her estate, was substituted as party defendant and movant in the action.

Trial was held on the motion to vacate on August 29, 1967. The entry denying the motion was journalized on December 22, 1967.

The Court of Appeals reversed the judgment of the Probate Court and ordered the January 15, 1965, settlement entry vacated on the ground that it had been irregularly obtained.

Paul W. Brown, Atty. Gen., and James W. Wheeler, Asst. Atty. Gen., for appellants.

John C. Graham, Zanesville, for appellee.

SCHNEIDER, Judge.

On oral argument, appellants abjured any contention that the landowner's husband, who was present at the conference when the settlement entry was prepared and who is now the real party in interest, should be estopped to deny the validity of the settlement entry.

The position of appellants is that the 'journal entry-settlement' conveyed title to appellee's land to the state of Ohio; and is based upon two arguments: First, that the signature of landowner's attorney on the 'journal entry-settlement' was binding on the landowner; and second, that even if the attorney did not have authority to settle, the landowner's delay in disaffirming ratified the attorney's settlement.

This cause may be placed in clear perspective by examining the nature of a 'journal entry-settlement' in a land appropriation case. This journal entry was used as an instrument of title. It was sent to the county auditor to transfer ownership on the tax duplicate and to the county recorder as evidence of title in the state.

It is elementary that there must be statutory authority before any instrument is entitled to be recorded. 54 Ohio Jurisprudence 2d 554, Vendor and Purchaser, Section 12. The 'journal entry-settlement,' employed here, had no legal effect per se, and there was no authorization for its recording under the recording or appropriation statutes involved. Sections 123.21 to 123.38, Revised Code (repealed as of January 1, 1966, and replaced by Chapter 163, Revised Code). ¹

A landowner has the constitutional right to a jury's determination of the amount of compensation. Section 19, Article I, Constitution of Ohio. On the other hand, if the appropriating agency and the landowner agree upon an amount, a contract of settlement may be entered into and the action dismissed. However, there is no authority in the court itself to compel a settlement. Nor can the court, by its imprimatur, validate a settlement which is otherwise unenforceable, and attempt to give it the dignity of an instrument to convey title. The 'journal entry-settlement' can have no validity beyond its validity as an executory contract to sell land.

It is the position of the appellants that the settlement entry has the legal effect of a contract of sale of that land to the state, because it was executed by th attorney for the landowner.

However, the rule in Ohio and elsewhere is that an attorney who is without specific authorization has no implied power by virtue of his general retainer to compromise and settle his client's claim or cause of action. 6 Ohio Jurisprudence 2d 138, Attorneys at Law, Section 88; Annotation, 30 A.L.R.2d 944, 945. See Tedrich Furniture Co. v Tisdale (1958), 106 Ohio App. 345, 148 N.E.2d 717; Shilling v. Ross (App.1933), 16 Ohio Law Abst. 458.

Moreover, where the power claimed is to sell real estate, the agent's authority must be expressly given to execute a contract for the sale of land before such contract will bind the principal. Weatherhead v. Ettinger (1908), 78 Ohio St. 104, 84 N.E. 598; Spengler v. Sonnenberg (1913) 88 Ohio St. 192, 102 N.E. 737; 2 Ohio Jurisprudence 2d 121, Agency, Section 69.

In claimng that the 'journal entry-settlement' transferred title to the state appellant argues that the attorney had not only an implied power to sell land, but an implied power to convey the land. Again, such authority must be expressly given.

'The authority to convey realty has been recognized as distinct and separate from a mere authority to sell, and the question has sometimes arisen whether an agent empowered to sell has the power to convey where the latter power is not expressly given. In this connection, and authorization to convey real estate has the dignity of an instrument of title and, as such, should either expressly or by necessary implication state the authority of the agent without leaving it to be established by parol, inferred from coincidences, or based on speculation. * * *' 3 American Jurisprudence 2d 514, Agency, Section 118.

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