
    Orcutt v. Hausmer et al.
    (Decided May 28, 1934.)
    
      Mr. Clarence P. Ducey, for plaintiff in error.
    
      Mr. Frank M. Sala, for defendants in error.
   Lloyd, J.

From a judgment obtained in the Municipal Court of Toledo by the plaintiff in error, Clara J. Orcutt, the defendants in error, Frank J. Hausmer and Maud Hausmer, appealed to the Court of Common Pleas, and filed their petition therein, where as their cause of action it was alleged in substance that Clara J. Orcutt, referred to herein as Orcutt, conveyed to them, whom for brevity we will call Hausmer, by warranty deed, certain described real estate in which it was covenanted that the title so conveyed was clear, free and unencumbered, whereas at the time of the execution and delivery of the deed said premises were subject to a lien for taxes and an assessment due and payable December 20, 1932, in tbe sum of $150.97, for which, with interest thereon from the time of. payment thereof by them, they pray judgment. To this petition Orcutt filed an answer and cross-petition. The answer admits the execution and delivery of the warranty deed, denies each and all of the other allegations of the Hausmer petition, and further alleges that “on the 10th day of December, 1932, the defendant and plaintiffs entered into a written contract for the purchase of the. property in plaintiffs ’ petition described, through the Home Realty Company, by C. J. Tyner, Agent, by the terms of which contract, defendant agreed to convey by warranty deed, accompanied by an abstract or statement of title, showing said property to be free and clear of material defect and incumbrance, and with all taxes and assessments to be paid up to and including the December, 1932, payment”, and “that all subsequent payment of taxes and assessments were to be assumed and paid by the Hausmers. ’ ’

It is further alleged in this answer “that it was the intention of the parties reduced to writing that this defendant pay the taxes and assessments only up to and including the December, 1932, payment, all of which taxes this defendant paid” and “that upon the preparation of said deed, the Port Lawrence Abstract and Title Company omitted inadvertently to set forth therein that the plaintiffs were required to pay the June, 1933, payment of taxes and all taxes thereafter.”

In her cross-petition, Orcutt alleges the deeding to the Hausmers by warranty deed of the real estate in question, the receipt by her of $6,500, the purchase price thereof, and that the deed was executed and delivered pursuant to the written contract dated December 10, 1932, for the purchase by Hausmer of the real estate, which contract provided:

‘ ‘ Said premises to be conveyed by warranty deed to me or my assigns accompanied by an abstract or statement of title, made by some reliable abstracter, showing said property to be free and clear of material defect and incumbrance, with release of dower and with all taxes and assessments to be paid up to and including the December, 1932, payment. Subsequent payments to be assumed by me. This offer is subject to the consent of the owner.”

Orcutt further alleges in her cross-petition that this condition of the contract as to the taxes and assessment was inadvertently and unintentionally omitted from the deed, and prays that “by reason of said mistake and inadvertence said deed be reformed in accordance with the contract dated December 10th, 1932.”

A motion was filed by Hausmer in the Court of Common Pleas to strike from the answer all of that portion thereof hereinabove quoted. This motion was granted. Hausmer then demurred to the cross-petition of the plaintiff. The demurrer was sustained, and Orcutt not desiring to amend her cross-petition judgment was rendered thereon in favor of Hausmer for costs. From the action of the court thus taken on this demurrer, and the judgment so rendered, Orcutt prosecutes error to this court.

Hausmer filed a motion in this court to dismiss the petition in error for the reason that the action of the Court of Common Pleas in ‘ ‘ striking out certain matters in the answer of the defendant below is not a final order” and “for the further reason * * * that plaintiff in error never asked the court for leave to amend her petition.” It is apparent that this motion should be overruled.

The judgment for costs rendered on the sustaining of the demurrer to the cross-petition of Orcutt was a final order, and the cross-petition certainly states a good cause of action. It asks for the reformation of a deed, which, if the facts stated therein are true, should be decreed. That no trial has been had of the issues made by the petition of Hausmer and the answer thereto of Orcutt cannot avail to prevent Orcutt from prosecuting error to this court from the judgment rendered by the Court of Common Pleas after sustaining the demurrer of Hausmer to her petition. Wyse v. N. Y. C. R. R. Co., 11 Court of Appeals Opinions, Sixth District, Unreported, p. 248; Hawkins v. Wheeling & Lake Erie Ry. Co., 18 Court of Appeals Opinions, Sixth District, unreported, p. 103.

If the reformation of the deed sought by Orcutt’s cross-petition is decreed, then a complete defense is established to the alleged cause of action of Hausmer.

We may suggest that the written contract in question probably would be admissible in evidence under the general denial contained in the answer of Orcutt, but, under the affirmative allegations, which, on motion of Hausmer, were stricken from the answer, it certainly would be admissible and the motion to strike these allegations therefrom should have been overruled. Metcalf v. Lay, 16 Ohio Law Abs., 487; Conklin, Trustee, v. Hancock, 67 Ohio St., 455, 66 N. E., 518.

The judgment of the Court of Common Pleas is reversed and the cause is remanded to that court with directions to overrule the demurrer of Hausmer to the cross-petition of Orcutt, and for further proceedings according to law.

Judgment reversed and cause remanded.

Richards, J., concurs.

Williams, J., not participating.  