The Oak Building Roofing Co. v. Susor

On December 1, 1927, the plaintiff, the Oak Building Roofing Company, was the owner of certain real estate in Eastmoreland, in Lucas county, valued at $8,500, and the defendants were the owners of a lot with a bungalow thereon situated in Pinellas county, Florida. On that day the parties entered into a valid written contract to exchange their properties. On December 5, 1927, about 5:30 p.m., a deed was executed and delivered by plaintiff, conveying its property to defendants, and they transferred the Florida property to plaintiff. Thereafter it developed that the bungalow had been destroyed by fire at about 2 p.m. of the same day that the deeds were made, and some three and a half hours before the execution and delivery of the deeds. This action was brought for the purpose of securing an order from the court for reconveyance of the Lucas county property to the plaintiff, and for setting aside the deed which had been executed by the plaintiff to the defendants.

In the court of common pleas a decree was rendered for the defendants, from which the plaintiff appealed.

The contract contains no provision as to who should bear the loss in case any building on either of the properties should be destroyed before the deeds were executed; neither does it contain any provision requiring either of the parties to deliver the land with the buildings thereon in the same condition as when the contract was executed by the parties. The bungalow was destroyed by fire without any fault on the part of the defendants. The contract of sale being unconditional in form, we must regard the purchaser as the equitable owner of the property, and the vendor as holding the title for the benefit of the purchaser, and it would therefore result, under such a contract, that the loss by fire must fall on the purchaser.

A quite similar question was involved in the case of Gilbert Ives v. Port, 28 Ohio St. 276, although that case was complicated with an option to purchase. The Supreme Court, in delivering the opinion, cite with approval Sugden on Vendors (8th Am. Ed.), 291, to the effect that the vendee of property, being the equitable owner from the time of contract of sale, must pay the consideration for it, even though the property be destroyed between the time of agreement and the time of conveyance. The rule thus indicated appears to have been adopted by a great majority of the authorities. Maudru v. Humphreys, Admr., 83 W. Va. 307, 98 S.E. 259; McGinley v. Forrest, 107 Neb. 309,186 N.W. 74, 22 A.L.R., 567. The authorities are collected in a note to the last case cited, in A.L.R., beginning on page 575.

For the reasons given, judgment and decree will be entered for the defendants.

Judgment for defendants.

WILLIAMS and LLOYD, JJ., concur.