
    Common Pleas Court of Montgomery County.
    Alice Bonadio v. Anthony Bonadio et al.
    Decided June 16, 1933.
    
      Sigler & DenKnger for plaintiff.
    
      H. D. Arnonitz for defendant.
   Snediker, J.

This case was heard on the plaintiff’s testimony and at the close thereof a motion was made by the defendant that the petition of the plaintiff be dismissed.

The action was started by plaintiff’s petition in which she claims an undivided one-half of lot 3667 of the revised numbers of the plat of the city of Dayton and says that her husband was a tenant in common with her in these premises, owning the other undivided one-half, and she asks that partition be made thereof.

To this petition an amended answer of the defendant was filed in which he denies that the plaintiff was a tenant in common with him and denies that she was seized in fee simple of an undivided one-half of the property described in the petition. He denies generally all other allegations of the petition not admitted by him to be true.

As a second defense he sets up the fact that on February 1, 1928 he and the plaintiff, husband and wife, agreed to an immediate separation and entered into written articles for a division of their property. In pursuance of that agreement, he avers, he paid the plaintiff the sum of $500.00 and that by the terms thereof he was to pay her a thousand dollars more upon the sale of the real estate described in the petition, with the privilege reserved to himself of paying the thousand dollars at any time prior to such sale. He sets out the division of the personal property that was carried into effect, says that the plaintiff left the premises on the day the agreement was signed and' it was understood that she was not to interfere with him in any way in the management or control thereof nor interfere with his tenants. He says that he assumed and agreed to pay the mortgage indebtedness on the real estate and is entitled to all the proceeds of the sale except the amount stipulated to be paid to his wife. The reservation with reference to the negotiation of sale was in favor of the defendant.

A consideration of the articles of separation was that the plaintiff and defendant were respectively released and discharged from all obligations, rights, and duties growing out of the marital relation, and it was agreed that each should dispose of his or her own property as seemed fit. And there was an understanding that claims for dower, inheritance, to said distribution, and year’s support, were waived.

The defendant claims to have fully carried out his part of the agreement except the payment of the thousand dollars, and as a reason for not doing so says that his real estate has not been sold, although he has made every reasonable effort to do so but under existing conditions it could not have been done without great loss to him, and especially because of the sum of money which he has invested in the property and in the improvements. He claims to have paid to his wife in pursuance of the articles of separation the sum of $1350.00. His prayer is that the petition of the plaintiff be dismissed at her costs, that the relief sought therein by her be denied, and for other and further equitable relief.

The plaintiff’s reply to the defendant’s amended answer reiterates the tenancy in common, admits the entering into the agreement of separation, admits the payment of the $500.00 by the defendant to her, claims willingness on the part of the plaintiff to carry out her part of the agreement, and charges that the defendant has failed and refused to carry out his part, has failed and refused to sell the premises within two years from the date of the agreement and now more than three years and six months have elapsed since its execution, while the defendant is in possession and occupancy of the premises. She expresses a willingness to abide by the terms of the separation agreement and says that she has always been so willing and prays as in her petition; and, further, that the court find the sum of $1,000.00 to be due and owing to her out of the proceeds of the sale of the real estate, and for equitable relief.

It was to support her side of this issue that the plaintiff’s testimony was offered. The evidence disclosed that on May 4, 1923 the plaintiff and defendant became the owners of the property here sought to be partitioned. When they purchased it they paid $6,500.00 by a down payment of $1,500.00 and by two mortgages, one to a building association for $4,500.00, and another, or second mortgage, for $500.00. Thereafter they lived together in this property as a home. Circumstances arose which led to their separation and to the execution of a separation agreement. This agreement was in the ordinary form used for such purposes, was signed by both plaintiff and defendant, was witnessed by two witnesses, and acknowledged. It provided for a division of the household goods located in this property at 232 Park street, Dayton, Ohio, and also contained the following clause:

“Said Anthony Bonadio shall pay to his said wife, Alice Bonadio, the sum of $1,500.00 in the manner following: $500.00 to be paid upon the execution of this agreement, the remaining $1,000.00 to be paid when the real estate owned- by the parties hereto, hereinafter described, shall be sold. But said real estate shall be sold within two years from the date of this agreement. Said sum of $1,000.00 shall bear seven per cent interest from the date of this agreement, payable semi-annually until paid in full. Said Anthony Bonadio shall have the privilege of paying the said sum of $1,000.00 at any time prior to the sale of said property if so desired.”;

and also this provision:

“Said Anthony Bonadio, after payment of all the sums herein agreed to be paid by him to his said wife, shall have as his own the real estate owned by the parties hereto, located at No. 232 Park street in the city of Dayton, Montgomery county, Ohio, and being lot numbered 3667 on the revised plat of said city. Said Anthony Bonadio assumes and agrees to pay the present mortgage indebtedness on said real estate and he shall be entitled to have for his own all of the proceeds realized from the said real estate after payment to his said wife of the sums herein agreed by him to be paid to her. Said Anthony Bonadio shall have the right to negotiate the sale of said real estate, and said Alice Bonadio hereby agrees to join in the execution of the deed to the purchaser. The said sum of $1,000,00 herein before agreed to be paid to her, to be paid at the time of the execution by her of said deed, together with the accrued interest, unless the same is paid before the execution of such deed.”

There was a release and discharge of all rights or claims of dower, inheritance, descent, distribution, allowance for year’s support, and of all other claims or rights which might be allowed to the plaintiff in and to the estate of the defendant. After the execution of the separation agreement, $500.00 provided to be paid by the defendant was paid. The personal property segregated by the agreement to the plaintiff was taken possession of by her. More than two years went by and the real estate remained unsold and still is unsold. The plaintiff has not executed a deed to the defendant or to any other person, nor has she received the thousand dollars agreed to be paid to her before the execution of such deed. And it is on the theory that she is still the legal owner of the undivided one-half of lot 3667 in common with the defendant that this action is brought for partition.

By the separation agreement the plaintiff contracted to convey all interest which she had in lot 3667 and bound herself to be satisfied with the receipt of $1,000.00 at or before such conveyance for all value which she still might have in this real estate. The separation agreement still subsists, no cancellation thereof has been declared by decree of a court, nor has there been a rescission either by the plaintiff or through the medium of a proper tribunal. Since the separation agreement contains no clause which abrogates it after the expiration of two years on failure of the defendant to sell, we can only find that the plaintiff is now bound by its terms.

There is, as we all know, some excuse, arising from the difficulties prevalent in the real estate market, for the failure of the husband to sell within the period fixed. However that may be, the parties are still in the same contract relation as existed after the execution of this agreement on the first day of February, 1928.

If by this agreement there was an equitable conversion of the plaintiff’s interest in the real estate, then the action in partition can only be construed as an attempt on her part to reconvert her interest into real estate.

By equitable conversion is meant a change of property from real into personal or from, personal into real, not actually taking place but presumed to exist only by construction or intendment of equity. Most frequently equitable conversion results from testamentary provisions, but it may also be the result of contract. The doctrine of equitable conversion is based upon the principle that equity regards things directed or agreed to be done as having been already performed where nothing has intervened which ought to prevent performance.

The application of the rule of equitable conversion may only be made where there is an absolute or imperative direction to sell and convert property. This agreement of separation contains such absolute obligation to sell and convert; and from the date of its execution the interest of the plaintiff was in the proceeds of such sale, to the extent defined by the agreement. It is true that the record title of this property still shows that the plaintiff is seized of an undivided one-half in common with the defendant. But the contract, which was executed with all the formalities required in the execution of a deed, binds her to the receipt of money in lieu thereof and in lieu of all rights which might arise from such ownership^ of this lot; and we can only find that there was, through the separation agreement, a conversion of her interest which entitles her to receive on account thereof the sum which she contracted to receive.

If this be true, then can she on account of the default of her husband in making a sale according to the contract now reconvert by taking the action which she has in this case ?

Both the plaintiff and defendant are interested in the agreement and in its results, and in order to bring about a reconversion it is necessary that they should both agree thereto. It is a well known principle of equity that where lands are directed or contracted to be converted into money for the joint benefit of two or more persons, then one of them cannot, elect to take his share in the lands without conversion unless all of the co-owners consent to the reconversion.

Lawrence in his work on Equity Jurisprudence, in discussing reconversion, says:

“Those for whose benefit a conversion privilege is designed may, if sui juris, waive the benefit and elect to hold the property in its original form, thereby effecting what is termed a reconversion, an imaginary process by which a prior constructive conversion is annulled and the converted property restored, in contemplation of law, to its original state. The intention to effect a reconversion must be clearly manifest by act or declaration; it is not to be inferred from mere lapse of time. If there be more than one beneficiary the election must be unanimous.

In discussing the doctrine of reconversion as applied to wills, Jarman says:

“Where two or more persons are interested in the property it is not in the power of any one co-proprietor to change its character in regard even to his own share.”

In the case of Chambers v. Preston, 137 Tenn. 324, an attempt was made by partition to work a reconversion, and after discussing the authorities bearing upon such an attempt the supreme court of that state said:

“It would seem from these authorities that there can be no reconversion except by unequivocal act or declaration of the owners of the entire beneficial interest.”

Bispham in his work on Principles of Equity says:

“Nor can a reconversion take place, as a general rule, unless all the parties in interest unite to elect, for where several persons have an interest in the proceeds of the sale it does not lie in the power of any one of them to disappoint the others by preventing the sale from taking place.”

This plaintiff, as we have said, has already received, through the payment to her by the defendant of $500.00 on the day of the execution'of the agreement of separation, a part of the money into which her interest in the real estate was converted. It will readily be seen how difficult a reconversion would be under such conditions,.

It is the opinion of the court that not only equitable conversion of the plaintiff’s interest has resulted from this separation agreement and the payment made to her by the defendant, but that also no reconversion should be allowed through the medium of a suit in partition, as is attempted here.

The petition of the plaintiff is dismissed.  