Rollman & Sons Co. v. Alaska Realty Co.

This is a proceeding in error to the Court of Common Pleas of Hamilton county, Ohio, wherein that court rendered a declaratory judgment, the effect of which was to sustain as a valid lease an agreement between the parties thereto, typewritten upon ten separate pages and firmly bound and fastened together, with two additional sheets containing a collateral agreement of guaranty.

This proceeding was initiated in the Court of Common Pleas under and by virtue of the provisions of Section 12102-1 et seq., General Code, wherein it is provided that courts of record may be called upon to declare rights, status and other legal relations whether or not further relief is or could be claimed.

The evidence adduced develops that the lease agreement, as contained in the writing upon the ten sheets, expresses the exact intention of the parties thereto, that the same was executed with leisurely formality under the guidance and direction of eminently qualified counsel, that immediately following its execution, and pursuant to its terms, the complaining parties made extensive, permanent and costly changes in the improvements upon the real estate involved, that not the slightest suggestion of fraud is to be inferred from anything that occurred in connection with the execution of the agreement, and that the several sheets bearing upon them the typewritten words expressing the intention of the parties are firmly bound together by brass rivets, which are so constructed that when once drawn through the paper and compressed they present a fastening which must be destroyed as such if removed, and cannot be detached without to some extent leaving a trace of mutilation, and, further, that a page could not be inserted in the collection without first removing the rivet. As stated in the petition, the sheets are so bound, backed, and top-lapped with a manuscript cover that they formed "one instrument of ten pages."

The acknowledgment appears upon the tenth page, immediately below the words: "For the uses and purposes in said instrument mentioned."

Following the page upon which the acknowledgment appears are two pages containing a collateral guaranty of Hahn Department Stores, Inc., made a part of the lease by reference thereto.

It is the contention of the plaintiffs in error that the lease agreement is ineffective to convey the leasehold estate recited in the agreement because the acknowledgment is upon a separate page, contrary to the requirements of Section 8510, General Code. This section is as follows:

"A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor, mortgagor, or lessor, and such signing be acknowledged by the grantor, mortgagor, or lessor in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing also must be acknowledged by the grantor, mortgagor, or lessor before a judge of a court of record in this state, or a clerk thereof, a county auditor, county surveyor, notary public, mayor, or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto."

It will be noticed that the statute uses the word "sheet." If this word was given a restricted meaning, a great number of conveyances in this state would be immediately affected by the statute. The statute as far as the pertinent portion is involved appears in an act of the Legislature in 1831 (29 Ohio Laws, 346). This statute was construed in the case of Winkler v. Higgins,9 Ohio St. 599, in which it was held that a certificate of acknowledgment written "upon a separate strip of paper attached to the deed by a wafer, with the officer's seal upon the same" did not constitute a compliance with the provisions of the statute. The court says on page 604 of the opinion: "The object of the provision was, evidently, to prevent mistakes and fraud, and to give greater certainty to titles within the state."

The difference between the facts in this case and the one under consideration is apparent.

In Norman v. Shepherd, 38 Ohio St. 320, the court sustained a mortgage deed as valid, although written upon two sheets of paper. On page 322 the court says:

"There is no rule of law requiring a deed to be written entirely upon one sheet of paper, unless it be found in the first section of the act of February 22, 1831, 1 S. C., 460, which requires the certificate of the officer taking the acknowledgment to be ``on the same sheet on which such deed, mortgage, or otherinstrument may be printed or written.' Under this statute this court decided in Winkler v. Higgins, 9 Ohio St. 599, where the certificate of acknowledgment was upon a separate strip of paper attached to the deed by a wafer, the officer's seal upon it, that there was a failure to comply with the terms of the statute, and, in that case, it was said, ``The facility with which such a certificate of acknowledgment might be removed from one instrument and attached to others would greatly impair the public security against intentional frauds.'

"This remark has no application to the case before us. Here the certificate of acknowledgment is found upon the sheet containing the testatum clause, the signatures and the seals; and is inseparable from it without mutilation. True, this sheet does not contain upon itself a complete mortgage deed, but it is also true that neither does the other sheet which precedes it and to which it is attached. No such fraudulent use could be made of such an instrument as is suggested in Winkler v. Higgins, the possibility of which it was the intent of the statute to avoid.

"Indeed, it may be said that no fraudulent use of any kind could be made of this paper without actual forgery, and that this crime would be as easily perpetrated by writing a whole mortgage as half an one. In fine, we do not think that the case falls within the principle of Winkler v. Higgins or the requirement of the statute. Undoubtedly, where fraud is alleged, the fact that such an instrument is not drawn upon a single sheet might be a significant, or, under certain circumstances, an all-important factor in the determination of the issue. Nothing of the kind is claimed here."

In Columbus Merchandise Co. v. Kline, 248 Fed., 296, at page 300, the court says:

"If an affidavit on a separate sheet be so securely attached to a chattel mortgage or contract, by means of some adhesive substance or otherwise, that its removal would result in the mutilation of the instrument, or leave behind sufficient evidence that the instrument had been tampered with, I doubt not but that such instrument, when properly filed, would be held sufficient.

"As neither the Closs nor the Oglesby Cases are binding on a federal court, because not decided by the state's highest judicial tribunal, this court is at liberty to adopt its own views, and is inclined to believe that the right result was attained in the Closs Case, unless the affidavit was so affixed that it could not be removed without leaving behind proof that the instrument as originally filed had been tampered with."

In Oglesbey v. National Box Board Co., 25 C.C. (N.S.), 61, 27 C.D., 487, it is stated in the syllabus that:

"It is a sufficient compliance with Section 8568, General Code, relating to conditional sales of property, if the statement required by said section to be placed ``thereon' under oath, made by the vendor or his agent, is written upon a separate piece of paper and attached by means of fasteners to the conditional sale contract. National Cash Register Co. v. Closs, Assignee, 12 C.C. (N.S.), 15, overruled."

The intention of the Legislature is to facilitate not to retard the bona fide transfer of property. The courts construing the statute in question have been guided by such policy. The instant case presents no occasion for the application of a construction of this statute which would frustrate its purpose to facilitate and protect those interested in the transfer of interests in real estate.

Recourse has been had by those complaining of the mechanical construction of the instrument to the new proceedings permitting the pronouncement of a declaratory judgment. The parties, on the other hand, might have adopted a course of conduct entailing serious consequences if their conception of the matter was erroneous. The wisdom and also the security of the course adopted is not overlooked.

Our position is reinforced also by the conclusion that even if it were necessary to declare the lease ineffective as such, it must under the facts presented be deemed to be a contract to make a lease.

In conclusion, we observe the provisions of Section 12102-12, General Code:

"This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered."

In view of the authorities construing the statute in question, and the facts in this case developing that the several sheets of paper, constituting the writing embodying the exact agreement of the parties, are bound together in such a manner as to prevent any tampering therewith, without leaving definite evidence of such change, there being not the slightest suggestion of fraud or mistake, it is our conclusion that the instrument in question constitutes a valid lease, and the judgment should so be declared. The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

ROSS, P.J., MATTHEWS and HAMILTON, JJ., concur.