
    Vale et al. v. Stephens et al.
    
      Deeds — Substance superior to form, and intention of parties determinative — Extrinsic oral evidence unnecessary to determine parties’ understanding, when — Conveyance interpreted as indicating parties’ intention at time of execution — Whether conveyance is made, determined from language used — Stipulating consideration in real estate conveyances, applies only to executory contracts — Descent and distribution — Ancestral character not changed by deeding realty merely to correct title — Section 8573, General Code —Ownership not transferred or transmitted without mutuaX intention of change.
    
    1. In conveyance of real property, substance is superior to form, and intention of parties is determinative and decisive of the question.
    2. If language used in conveyance of real estate is unambiguous and self-explanatory, extrinsic oral evidence cannot be resorted to to define and determine mutual understanding of parties.
    3. Interpretation must be given to a conveyance of real property as will indicate intention of parties at time of execution of instrument.
    4. Question whether, in legal significance, a conveyance is' made, is to be determined from language used, if it is capable of explaining itself without resorting to independent facts and circumstances.
    5. The rule that it is necessary to express some consideration in a conveyance of real estate applies only as to executory contracts.
    6. Where property was bequeathed to M. A. S. in name of M. A. V., and thereafter M. A. V. deeded property to trustee for consideration of $10, sole purpose of deed being to correct record title and put on record the fact that S. was the same person as V, conveyance held not to destroy legal status of property as ancestral property, so that on death of S, intestate, her brothers inherited under Section 8573, General Code, instead of heirs of -S’s husband.
    7. Since a conveyance is the medium by which property is transferred from grantor, there is no transfer or transmission of ownership without mutual intention of transfer and transmission of property with purpose' of change in ownership.
    (Decided June 27, 1927.)
    Appeal: Court of Appeals for Cuyahoga county.
    
      Mr. George O. Hansen, for plaintiffs.
    
      Messrs. Krueger & Pelton, for defendants.
   Sullivan, P. J.

This cause is here on appeal from, the court of common pleas of Cuyahoga county, and the question involved is whether the plaintiffs below, John Vale and William Vale, are entitled to partition of the property described in the petition, and this question can only be answered by determining whether, under the statutes of descent and distribution and the record in the case, the- land in question was acquired by descent or purchase, and, more specifically speaking, whether from the testimony in the case the following language in a deed from Mary A. Vale to William T. Clark destroys the ancestral character of the property:

“The sole purpose of this deed is to correct the record title to said premises, inasmuch as the deeds by which this grantor obtained ti' e ran to her in her maiden name of Mary Vale, lias Mary Vail, whereas, in fact, she was a married woman. This conveyance to Wm. T. Clark and his reconveyance are made for the purpose of putting of record the fact that Mary Vale, alias Mary Vail, is one and the same person as Mary Vale (alias Vail) Stephens. ’ ’

It appears that Mary Jane Vail, alias Vale, died testate March 5, 1913, and left as her next of kin Robert Vale, her husband, her two sons, John Vale and William Vale, and her daughter, Mary Ann Stephens. In her will she bequeathed a one-half interest in her home located at 674 East 118th street, in the city of Cleveland, to her daughter, Mary Ann Vail. The remainder she devised to her husband and other heirs. On June 24, 1914, Mary Ann Vail purchased the interest of her father and the other heirs by warranty deed, in the name of Mary Ann Vale. On July 2, 1914, Mary Ann Vale, otherwise known as Mary Ann Vail, and Mary Ann Vail Stephens, deeded the premises so acquired to-Wm. T. Clark by quitclaim deed, and named as a consideration therefor the sum of $10, and the same was recorded July 6, 1914, and a reconveyance by Wm. T. Clark to Mary Vale (alias Vail) Stephens was made on July 2, 1914, and was recorded July 6, 1914. In this deed is the clause under discussion, above quoted.

On October 7,1918, Mary Ann Vail Stephens died intestate, leaving her husband, Joseph Stephens,. and no children, and possessed of the premises heretofore described. Joseph Stephens married, and died testate May 7, 1925, and in the will above noted attempted to dispose of the property. Out of these circumstances arises the question as to who is the owner of the one-half interest acquired by will from the mother. Is it her brothers, or the relict and the devisees and heirs of Joseph Stephens, her husband?

Section 8573 of the General Code of Ohio, under the chapter “Descent and Distribution,” provides, among other terms, as follows:

“If there are no such parents or upon the death of, both of such parents, the estate shall pass to and vest in the brothers and sisters of the intestate who are of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or half blood of the intestate. ’ ’

It is a well-settled ruling of law with respect to the conveyance of real property that substance is superior to that of form, and the intention of the parties, which is the foundation of all contracts, is determinative and decisive of the question. To determine the intention of the parties, recourse must be had to the language contained in the instrument, and, if it is unambiguous and self-explanatory, extrinsic oral evidence may not be resorted to for the purpose of defining and determining the mutual understanding of the parties. It is a rule of construction that such interpretation must be given as will indicate the intention of the parties at the time of the execution of the instrument. In fact, the question whether in legal significance a conveyance is made is to be determined from the language, if, as in the instant case, it is capable of explaining itself without resorting to independent facts and circumstances. In the present case we do not think the latter would be competent; but that is immaterial in the present discussion for the reason that the language itself stands unchallenged.

It has been said in Thiessen v. Moore, 105 Ohio St., 401, 137 N. E., 906, that it is necessary to express some consideration in a conveyance of real estate; but this is undoubtedly true only as to executory contracts, as no sound reason exists for applying the same rule to express contracts.

Now, coming to an analysis of the clause contained in the deed from Mary A. Vale to William T. Clark, it is clear and conclusive that the mutual intention of the parties was that the document called a conveyance should be simply an instrumentality or medium by which the proper name of the owner of the property might become a matter of record. It must be borne in mind that there is no question as to identity, and therefore a simple affidavit in an abstract of title determining the question of identity is all that could be required to remove the cloud and to complete the chain of title. This made the transaction absolutely unnecessary, and emphasizes that construction which we are constrained unanimously to give as the import of the language in question, that the mutual intention of the parties was that the ownership of the land should not in any manner, directly or indirectly, pass from Mary A. Vale to William T. Clark, notwithstanding the transaction was in form equivalent to a conveyance. But a conveyance, under all the definitions and authorities, is the medium by which property is transmitted or passed on to some one other than the grantor, and in no fundamental sense is there a transfer or transmission of ownership without a mutual intention of transfer and transmission of the property with the purpose of a change in ownership. The language in the deed here indicates that the only purpose in making this conveyance, so called, was to correct the record title; and this, too, in a case where there was no question as to the identity of the person owning the premises. These words define the purpose and recite the explanation, and thus become a bar to the passing, in any manner whatsoever, from Mary A. Vale to William T. Clark, by way of transfer or transmission, of any portion of the property described.

Again, from the record, it appears that the deed from Vale to Clark and the deed from Clark to Vale by way of reconveyance were practically and substantially one transaction, and in this respect made inapplicable as an authority in this cause the case of Kihlken v. Kihlken, 59 Ohio St., 106, 51 N. E., 969, wherein it is recited in the syllabus:

“Where an owner of ancestral lands conveys them to another, on a written agreement that he will, upon' request, reconvey them, the ancestral character of the land is thereby destroyed; and if a request to reconvey is made, but the grantor dies before it is executed, without issue, but leaving a widow, and brothers and sisters, a conveyance to the widow is a proper execution of the trust, and the brothers and sisters of the deceased grantor have, as heirs, no legal or equitable title to the land. ’ ’

In the Kihlken case the conveyance was made for the purpose of delaying, hindering, and defrauding creditors, and for this reason alone a court of equity would not decree a reconveyance, on the well-known principle that equity will not aid a fraud, and that no one may take advantage of his own fraud. It will be noted, however, that in the KihOten case, there was a conveyance in a legal sense; but in the instant case, in our judgment, there was, in law, no conveyance, because the transaction did not contain that vital and essential element of all conveyances of land that there shall be a transfer and transmission of the,property from the owner to some grantee. Therefore the legal status, under the statutes of distribution and descent, was the same subsequent to the transaction between ■ Mary A. Yale and William T. Clark as it was immediately prior thereto, for the reason that the grantor, in that instrument of writing, did not part, in any manner, with her property, or any part thereof, described in the instrument of writing under controversy.

This interpretation of the language in question represents the absolute verity of the transaction, and truth itself, under ancient principles as well as modern, in cases of the character of the one at bar, is the law of the land; otherwise the law would become a trap for the owner of property acting innocently, and with no intention, to part with property, instead of a bulwark against baseless assault.

It is argued by able counsel for defendants in error that the recital detailing the purpose of the transfer is of no force and effect, because the conveyance itself had already been made according to the forms of law. This is where, in our judgment, the error arises that makes visible the weakness of the contention of plaintiffs in error, for, as above noted, there was no conveyance consisting of acts which as an actual fact comprise the transfer of real estate from one person to another.

An illustration, which, in our opinion, proves the doctrine we are announcing under the record in the case, is that if Mary A. Yale had deeded the property to William T. Clark, as trustee for her, the property would still remain that of Mary A. Yale, inasmuch as under such a conveyance, the character of the property would not be changed, because of no change in the ownership, and because no interest of any substance or character other than form was passed to William T. Clark.

Bearing out our views, we think the following authorities are applicable: Ernst v. Keller, 20 Ohio App., 171, 151 N. E., 790; Huseman v. Fingermeyer, 106 Ohio St., 113, 139 N. E., 862; Freeman v. Allen, 17 Ohio St., 527; Carter v. Day, 59 Ohio St., 96, 51 N. E., 967, 69 Am. St. Rep., 757; White v. Brocaw, 14 Ohio St., 339; Dudrow v. King, 117 Md., 182, 83 A., 34, 39 L. R. A., (N. S.), 955, Ann. Cas., 1913E, 1258; Lawson v. Townley, 90 Ohio St., 67, 106 N. E., 780; Shehy v. Cunningham, 81 Ohio St., 289, 90 N. E., 805, 25 L. R. A., (N. S.), 1194; Miller v. Stokely, 5 Ohio St., 194; Stall v. City of Cincinnati, 16 Ohio St., 169; Thompson on Real Property, Vol. 3, Sections 2240, 2306; Thompson v. Thompson, 17 Ohio St., 649; Thompson on Real Property, Vol. 4, Section 3002; Thompson on Real Property, Vol. 5, Section 4575.

The authorities cited in the supplemental brief of defendants, namely, Patterson v. Lamson, 45 Ohio St., 77, 12 N. E., 531; Olmstead v. Douglass, 16 C. C., 171, 8 C. D., 465; Stembel v. Martin, 50 Ohio St., 495, 35 N. E., 208; Thompson on Real Property, Sections 3002 and 3324, in onr judgment do not apply, if we are correct in our reasoning in this opinion. We do not think the transaction in the instant case was such a conveyance in law as transmitted any property right, and in the cases just cited the conveyances, as matters of law, were not minus those elements that constitute transmission or transfer of property.

Holding these views, a decree for the plaintiffs may he entered.

Decree for plaintiffs.

Vickery and Levine, JJ., concur.  