Siferd v. Stambor

• Decision Date: 05 January 1966
• Citation: 5 Ohio App.2d 79,214 N.E.2d 106
• Parties: , 34 O.O.2d 189 SIFERD et al., Appellants, v. STAMBOR, Appellee.
• Court: Ohio Court of Appeals

Page 79

5 Ohio App.2d 79

214 N.E.2d 106, 34 O.O.2d 189

SIFERD et al., Appellants, v. STAMBOR, Appellee.

Court of Appeals of Ohio, Third District, Allen County.

Jan. 5, 1966.

Light, Siferd & Light, Lima, for appellants.

Meredith, Meredith & Tait, Lima, for appellee.

MIDDLETON, Judge.

This is an appeal from a judgment of the Court of Common Pleas sustaining defendant's demurrer to plaintiffs' amended petition and the court, being satisfied the defect could not be remedied by amendment, ordered that plaintiffs' amended petition be dismissed. From this judgment plaintiffs appeal.

Plaintiffs in their amended petition allege that on October 8, 1945, and prior thereto, Paul E. Bonofiglio and Erma Bonofiglio were the owners of 100 feet off the entire north end of Lots Number 105 and 106 in the original plat of the town now city, of Lima, Allen County, Ohio. Prior to the acquisition of such property by Paul E. Bonofiglio and Erma Bonofiglio, a building known as the DeSoto Hotel had been erected on the east 40 feet of the north 100 feet of Lot Number 105. While Paul E. Bonofiglio and Erma Bonofiglio owned such real estate they erected immediately adjacent to the west wall of the building known as the DeSoto Hotel, and utilizing the west wall of that building as a party wall, a building to be rented and used as a restaurant. They so constructed such building that the lavatory of the restaurant building was located east of the party wall and within the DeSoto Hotel building but was closed off from it by three walls erected on the north, east and south walls of the lavatory, which was entered from the west by a door through the party wall. This construction was completed and the restaurant building was put into use prior to October 8, 1945. On October 8, 1945, Paul Bonofiglio and Erma Bonofiglio for a good and valuable consideration executed and delivered to Homer W. Vroman and Gail O. Vroman, their heirs and assigns, a deed which was filed for record October 10, 1945, and which, omitting the signatures, witnesses and acknowledgment, is in words and figures in part as follows:

(1) 'Know all men by these presents: That Paul Bonofiglio and Erma Bonofiglio, husband and wife, the grantors, in consideration of the sum of one ($1.00) dollar and other valuable considerations, in hand paid by Homer W. Vroman and Gail O. Vroman, husband and wife, the grantees, do give, grant, bargain, sell and convey unto the said grantees, their heirs and assigns, the following described premises, situated in the county of Allen and state of Ohio:

'One hundred (100) feet off of the entire north half of inlot No. 106 and 10 feet, more or less, off of the west side of the north 100 feet of inlot No. 105 in the original plat to the town, now city of Lima, Ohio.

'It is further understood that the grantees shall have the right to the use of the lavatory now in the hotel building which is being used for the benefit of the grantees and their help and patrons of the restaurant.

'* * *

'To have and to hold the above granted and bargained premises, with the appurtenances thereunto belonging unto said grantees, their heirs and assigns forever. And said grantors do for themselves and heirs covenant with said grantees, their heirs and assigns, that at and until the ensealing of these presents they were seized of the above described premises, as a good and indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written and that the same are free from all incumbrances whatsoever, except as above mentioned and will warrant and defend said premises with the appurtenances thereunto belonging, to the said grantees, their heirs and assigns forever against all lawful claims and demands of all persons whomsoever.' (Emphasis added.)

That deed was duly signed by Paul Bonofiglio and Erma Bonofiglio, grantors therein named, witnessed by two witnesses, and acknowledged before a notary public.

By deed dated July 21, 1947, filed for record July 22, 1947, Paul E. Bonofiglio and Erma Bonofiglio, husband and wife, conveyed to U. E. Local 724 Building Corporation, its successors and assigns, the following described premises:

'Being a part of inlot number one hundred five (105) in the original plat of the city of Lima, state of Ohio:

'Beginning on the south line of Elm St., at the east line of inlot 105, said place of beginning being also the northeast corner of said inlot 105; thence south along the east line of said inlot 105, a distance of 100 feet; thence west parallel to the south line of Elm Street 40 feet more or less to a point in the line extended of the west face of the west wall of the building known as DeSoto Hotel and also known as 111, 111 1/2, 113 West Elm Street; thence north along said extended line and along the west side of said wall 100 feet more or less to the said south line of Elm Street; thence east along the said south line 40 feet to the place of beginning, but subject to a party wall agreement of record in volume 283 Allen County Records.'

By agreement entered into September 18, 1947, filed for record September 18, 1947, U. E. Local 724 Building Corporation and Homer W. Vroman and Gail O. Vroman, who were the then owners of the premises conveyed to them respectively by Paul E. Bonofiglio and Erma Bonofiglio by the respective deeds above set forth, entered into an agreement which they signed and acknowledged before a notary public but which is unwitnessed. This agreement, omitting the signature and acknowledgment, is in words and figures as follows:

'This agreement entered into this 18th day of September, 1947, at Lima, Ohio, between U. E. Local 724 Building Corporation, the owners of part of inlot No. 105 in the original plat of Lima, Ohio, and Homer W. Vroman and Gail O. Vroman, Lima, Ohio, owners of part of inlot No. 106 and 10 feet more or less off of the west side of inlot No. 105, adjoining said part of inlot No. 105, owned by U. E. Local 724 Building Corporation.

'The said U. E. Local 724 Building Corporation as aforesaid, recognized the rights and uses given the said Homer W. Vroman and Gail O. Vroman in the deed from Paul E. Bonofiglio and Erma Bonofiglio dated October 8, 1945, recorded in vol. 283, page 275, in Allen County Deed Records in the Recorder's Office, Lima, Allen County, Ohio, in respect to the use of the lavatory in the hotel building located on the premises now owned by said U. E. Local 724 Building Corporation; and in consideration thereof the said Homer W. Vroman and Gail O. Vroman, their heirs and assigns agree to maintain said lavatory and assume any and all liability to the public or anyone using same.'

(The parties in the present case were not parties to this agreement and the agreement does not control or determine any issue in the present case.)

The petition further states that by deed dated March 11, 1952, U. E. Local 724 Building Corporation conveyed to International Electrical Local 274 Building Corporation land by the same description contained in the deed from Paul Bonofiglio and Erma Bonofiglio to U. E. Local 724 Building Corporation.

Thereafter, on May 22, 1950, Homer W. Vroman and Gail O. Vroman executed and delivered to Lena G. Siferd, her heirs and assigns, a deed which, omitting the signatures, witnesses and acknowledgment, is in words and figures following:

'Know all men by these presents, That Homer W. Vroman and Gail O. Vroman, husband and wife, the grantors, in consideration of the sum of one ($1.00) dollar and other good and valuable considerations in hand paid by Lena G. Siferd, 130 North Elizabeth Street, Lima, Ohio, the grantee, do give, grant, bargain, sell and convey unto the said grantee, her heirs and assigns, the following described premises, situate in the county of Allen and state of Ohio, to-wit:

'One hundred (100) feet off of the entire north half of inlot number one hundred six (106) and ten (10) feet more or less off of the west side of the north one hundred (100) feet of inlot number one hundred five (105) in the original plat to the town now city of Lima, Allen county, Ohio.

'Also, the one-half interest in the party wall now constructed between the DeSoto Hotel and Boots Restaurant with the privilege and right in grantee, her heirs and assigns to extend her building south to the same height as the restaurant building as now exists upon said premises. Also, the right and privilege in grantee, her heirs and assigns, to use the lavatory now located in the hotel building together with the right of ingress and egress to and from said lavatory.

'To have and to hold the above granted and bargained premises, with the appurtenances thereunto belonging unto the said grantee, her heirs and assigns forever.

'And the said grantors for themselves and heirs covenant with said grantee, her heirs and assigns, that at and until the ensealing of these presents they were well seized of the above described premises, as a good and indefeasible estate in fee simple, and have good right to bargain and sell the same in the manner and form as above written; and that the same are free from all incumbrances whatsoever and will warrant and defend said premises, with the appurtenances thereunto belonging to the said grantee, her heirs and assigns forever, against all lawful claims and demands of all persons whomsoever; and I, Gail O. Vroman, wife of the said Homer W. Vroman; and I, Homer W. Vroman, husband of the said Gail O. Vroman, do hereby remise, release and forever quit-claim unto the said grantee, her heirs and assigns, all our right and title of dower in the above described premises.' (Emphasis added.)

By deed dated July 11, 1962, filed for record July 13, 1962, International Electrical Local 274 Building Corporation conveyed to Samuel Stambor, defendant herein, the land by the same description contained in the deed from Paul E. Bonofiglio and Erma Bonofiglio to U. E. Local 724 Building Corporation.

Plaintiffs are the sole...