Sword v. Sword
Decision Date | 01 February 1993 |
Docket Number | CA92-08-019,Nos. CA92-07-016,s. CA92-07-016 |
Citation | 86 Ohio App.3d 161,620 N.E.2d 199 |
Parties | SWORD, Appellee, v. SWORD et al., Appellants. |
Court | Ohio Court of Appeals |
Alfred J. Frericks, Galloway, for appellee.
Susan Sword, pro se.
Bernard McLoughlin, pro se.
Defendants-appellants, Susan Sword and Bernard L. McLoughlin, appeal a decision of the Madison County Court of Common Pleas granting a petition by plaintiff-appellee, Larry Sword, for a writ of partition.
Appellee filed a petition on February 24, 1992, in which he alleged that he and Susan Sword, his former wife, each owned an undivided one-half interest in the property in question. He also alleged that McLoughlin claimed an interest in the property by virtue of a quitclaim deed from Susan Sword. Appellee asked that the property be partitioned, or sold if it could not be partitioned. Appellee also claimed that since appellants had exclusive occupancy of the property for fourteen months, he was entitled to an accounting and payment of his share of the reasonable rental value of the property. Appellants filed a counterclaim alleging that appellee had refused to reimburse them for his share of the real estate taxes and insurance for 1990 and 1991. They also alleged that they had made improvements to the property and that appellee should reimburse them for any increase in its value.
Appellee filed a motion for summary judgment. The trial court granted the motion, concluding that appellee and McLoughlin each owned an undivided one-half interest in the property, and that since appellee had a legal right to part of the estate, a writ of partition should issue. The trial court appointed three commissioners to make the partition pursuant to R.C. 5307.04.
On June 8, 1992, the commissioners filed a report stating that they were of the opinion that the estate could not be divided without manifest injury to its value. After a series of motions by appellants, appellee filed a motion asking the court to confirm the report of the commissioners and enter an order of sale. On July 8, 1992, the trial court confirmed the commissioners' report and ordered that the property be sold at public auction. This appeal followed.
As a preliminary matter, appellee has attached to his brief a motion for an order requiring appellants to pay his attorney fees and costs pursuant to App.R. 23. He argues that the appeal is frivolous and was taken merely to harass him. We conclude that the appeal was sufficient on its face, and therefore we deny appellants' motion. See In re Estate of Hollingsworth (1989), 58 Ohio App.3d 14, 15-16, 567 N.E.2d 1322, 1322-1324.
In response to appellee's motion, appellants filed a motion to strike appellee's brief, claiming that it did not respond to the arguments they made under their assignments of error. We find that appellee's brief, while far from being ideal meets the minimum requirements set forth in App.R. 16 and Loc.R. 11. Therefore, appellants' motion to strike is denied.
Turning to the merits of the appeal, appellants present six assignments of error for review. In their first assignment of error, they state that the trial court erred by denying them a jury trial. In their second assignment of error, appellants state that the trial court erred by granting summary judgment in favor of appellee. Since appellants argue these assignments of error together, we will consider them together.
Appellants claim that there were questions of material fact relating to the issues of rent, taxes, insurance, and improvements. They claim summary judgment was inappropriate and that they were entitled to a jury trial on these issues. We find this assignment of error to be well taken as it relates to appellants' arguments regarding rent, taxes, insurance, and improvements.
R.C. 5307.01 provides that "[t]enants in common, survivorship tenants, and coparceners, of any estate in lands * * * may be compelled to make or suffer partition * * *." R.C. 5307.04 further provides that "[i]f the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition thereof * * *."
Although the proceedings before the trial court were somewhat convoluted due to appellants' various filings, the material supporting and opposing summary judgment clearly demonstrate appellee was a cotenant with a legal interest in the property. Therefore, the trial court was required to grant his petition. Lauer v. Green (1918), 99 Ohio St. 20, 121 N.E. 821, paragraph one of the syllabus; Hendrix v. Hendrix (Aug. 26, 1981), Warren App. No. 422, unreported, at 4, 1981 WL 5176. There is no issue of material fact and appellee was entitled to judgment as a matter of law. Accordingly, summary judgment was proper as to the issue of whether a writ of partition should issue. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47-48; Foster v. Foster (Sept. 19, 1986), Montgomery App. No. 9850, unreported, at 5-6, 1986 WL 10318.
However, the trial court made no ruling at all on appellee's claim for rent and appellants' claims regarding taxes, insurance and improvements. These issues were all properly before the court in the partition action. See Russell v. Russell (1940), 137 Ohio St. 153, 17 O.O. 506, 28 N.E.2d 551; Edwards v. Edwards (1958), 107 Ohio App. 169, 8 O.O.2d 73, 157 N.E.2d 454; Lipps v. Lipps (1951), 90 Ohio App. 578, 48 O.O. 213, 100 N.E.2d 862; Schippacasse v. Brandt (App.1934), 17 Ohio Law Abs. 188. Therefore, we remand the case to the trial court to consider what, if any, setoffs are appropriate for rent, taxes, insurance, and improvements prior to the distribution of the sale proceeds.
However, this holding does not require a jury trial as contended by appellants. Even though partition is a statutory action, it is still equitable in character, Wagner v. Armstrong (1916), 93 Ohio St. 443, 455-458, 113 N.E. 397, 400-401; Shively v. Shively (1950), 88 Ohio App. 7, 16-17, 43 O.O. 385, 389-390, 95 N.E.2d 276, 282-283, and there is no right to a jury trial, McRoberts v. Lockwood (1892), 49 Ohio St. 374, 375, 34 N.E. 734, 735; Barr v. Chapman (C.P.1886), 11 Ohio Dec.Rep. 862, 867, affirmed sub nom. Barr v. Closterman (1887), 2 Ohio C.C. 387. Accordingly, appellants' first and second assignments of error are sustained in part and overruled in part.
In their third assignment of error, appellants state that the trial court erred by ruling that Susan Sword was not a co-owner of the property in question. She alleges that she did not intend to convey her entire interest in the property to McLoughlin under the quitclaim deed. We find this assignment of error is not well taken.
The record contains three deeds. The first is a fiduciary deed, numbered 11382, dated May 29, 1985, from Patricia Sue Hanson, executor, to Larry R. Sword and Susan L. Sword conveying an undivided one-half interest in the property. The second deed is a warranty deed, numbered 11383, also dated May 29, 1985 from Hanson, individually, to Larry and Susan Sword, conveying an undivided one-half interest in the property. The third is the quitclaim deed from Susan Sword to McLoughlin dated January 6, 1991, conveying an undivided one-half interest in the property.
Appellants claim that when Susan Sword executed the quitclaim deed to McLoughlin, she conveyed only a one-half interest in the property conveyed under the second deed from Hanson, numbered 11383, but not the first, numbered 11382. In other words, appellants claim Susan Sword conveyed one-half of a one-half interest in the property to McLoughlin. In support of their arguments, appellants point out that the prior deed reference in the quitclaim deed from Susan Sword to McLoughlin refers only to the volume and page number where the deed numbered 113883 is recorded. This argument, while interesting, is not persuasive.
The cardinal rule in the construction of deeds is that the parties' intention at the time of the execution of the instrument controls. Siferd v. Stambor (1966), 5 Ohio App.2d 79, 86, 34 O.O.2d 189, 193-194, 214 N.E.2d 106, 110-111; Vale v. Stephens (1927), 25 Ohio App. 523, 526, 159 N.E. 114, 115. A deed's language is conclusively presumed to express the parties' intention absent uncertainty in the language employed. 37 Robinwood Assoc. v. Health Industries, Inc. (1988), 47 Ohio App.3d 156, 157, 547 N.E.2d 1019, 1020-1021. If the language used is clear and unambiguous, extrinsic oral evidence may not be resorted to for purposes of defining and determining the mutual understanding of the parties. Siferd, supra, 5 Ohio App.2d at 86, 34 O.O.2d at 193-194, 214 N.E.2d at 110-111; Vale, supra, 25 Ohio App. at 526, 159 N.E. at 115.
Through the two deeds from Hanson, Larry and Susan Sword each owned an undivided one-half interest in the property as tenants in common. See Heiden v. Howes (1945), 77 Ohio App. 525, 33 O.O. 353, 67 N.E.2d 641. We have reviewed the 1991 quitclaim deed from Susan Sword to McLoughlin, and we find it to be unambiguous. Susan Sword expressly and clearly granted to McLoughlin an undivided one-half interest in the property, the entire interest she owned. Since the language in the deed is clear, appellants' statements in their affidavits to the effect that Susan Sword did not intend to convey her entire interest should not be considered.
Further, we do not think that the prior deed reference in the quitclaim deed from Susan Sword to McLoughlin, which refers only to one of the Hanson deeds, creates an ambiguity when the extent of the estate conveyed was fully described in clear and unambiguous language in the legal description and in other deed clauses. A prior deed reference is for use of future title examiners and does not modify the description of the premises conveyed. Burks v. Louisville Title Ins. Co. (1953), 95 Ohio App. 509, 513, 54 O.O. 128, 130, 121...
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