Henkle v. Henkle , 75 Ohio App. 3d 732 ( 1991 )

I agree that the summary judgment granted to appellees on appellant's four claims for relief should be affirmed. I write separately, however, to express the reasons why such judgment should be affirmed even though the deed in question was neither executed nor acknowledged as required by law.

R.C. 5301.01 provides that:

"A deed * * * must be signed by the grantor * * * and such signing must be acknowledged by the grantor * * * in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing must be acknowledged by the grantor * * * before a * * * notary public * * * who shall certify the acknowledgment and subscribe his name to the certificate of such acknowledgment."

Appellant's initial complaint included the four claims for relief discussed in the majority opinion. Appellant later filed an amended complaint to add a fifth cause of action claiming "improper acknowledgment and execution" of the deed. In ruling on appellees' summary judgment motion, the trial court found that "[appellant] signed the deed in [the grandson's] presence, but not in the presence of the witnesses whose names appear on the deed." Thus, the trial court found that the deed was a defectively executed instrument. Consequently, the instrument is not entitled to be recorded. See State ex rel. Puthoff v.Cullen (1966), 5 Ohio App.2d 13, 34 O.O.2d 61, 213 N.E.2d 201. Given this lack of compliance with R.C. 5301.01, I believe it is incumbent upon us to explain why we are approving a conveyance in which the deed was improperly executed.

Although it found that the deed was not properly witnessed, the trial court failed to rule on appellant's improper acknowledgment and execution claim in granting summary judgment to appellees. Consequently, we dismissed an earlier appeal because this claim was still pending and the trial court's judgment entry lacked the requisite Civ.R. 54(B) language. Oddly enough, appellant voluntarily dismissed her improper execution and acknowledgment claim after we remanded the case to the trial court which again granted summary judgment to appellees. Having now voluntarily dismissed the fifth cause of action, appellant surrendered her claim that the deed is invalid due to lack of proper acknowledgment and execution. It is also significant that appellant would challenge the deed to her grandson on these grounds, while at the same time she did not attempt to set aside the conveyance of 1.7 acres to her son, Robert, which deed was executed simultaneously to the one challenged herein.

Since appellant voluntarily dismissed her fifth cause of action, I therefore concur with the decision to affirm the summary judgment granted to appellees, notwithstanding the deed's lack of proper execution and acknowledgment.