
    Stanton et al. v. Schmidt et al.
    (Decided October 23, 1931.)
    
      
      Messrs. Williams, Sinks & Williams and Messrs. Pretsman, Dillon S Craig, for plaintiffs.
    
      Mr. Rodney B. Baldwin, for defendant Harry E. Schmidt.
   Ktjnkle, J.

This is an action in which the plaintiffs seek to enforce certain restrictive provisions in an instrument of writing which was entered into between certain of the residents of Miami avenue in the city of Columbus, Ohio.

An issue was joined by the pleadings, and the case was submitted to the lower court with the result that the finding of the court was in favor of the plaintiffs and the defendants other than Harry E. Schmidt. The finding and judgment were against said Harry E. Schmidt.

From such finding and judgment an appeal has been taken to this court.

In brief it appears from the amended petition that all of the property owners on Miami avenue, between Broad street and Long street, with the exception of six, entered into a mutual contract which contained certain restrictions affecting the property on said street between said points.

The contract in question is quite lengthy, and, as the substance of the same is set forth in the reply brief of counsel for plaintiffs, we shall adopt such statement as containing the material provisions of the contract in so far as the essential issues are concerned. Such statement is as follows:

“(1) That each of said owners agrees and binds himself never to sell, lease, mortgage, pledge, give or otherwise dispose of the property above mentioned, or any part thereof, to any colored person, to any person in whole or in part of the negro race or blood, or to any person other than a member of the white or Caucasian race.

“ (2) That said owners and each of thern bind themselves never to rent said property, or any part thereof, or to permit the use or oeenpaney of the same, or any part thereof, by any colored person, or any person in whole or in part of the negro race or blood, or to any person other than a member of the white or Caucasian race except such a person be a servant working for a white family.

“ (3) Said contract further provides that this agreement is to be incorporated by reference in all deeds or other instruments of conveyance.

(4) Said contract further provides that if any one of the six owners who did not enter into this agreement rents his property to a person not of the white or Caucasian race for a continuous period of three months, or should allow the same to be occupied by such person for said period, or should sell said premises to a person not of the white or Caucasian race, and such a person be an owner of the property continuously for three months, then said contract shall be null and void and terminated.

“(5) The restrictions above mentioned are to run with the land as covenants for a period of twenty-five (25) years.”

The record discloses that this contract was filed with the county recorder of Franklin county on the 29th day of January, 1927, and was subsequently, namely on February 1, 1927, recorded in the deed records of Franklin county, Ohio, by such county recorder.

Plaintiffs say that at the time of the execution of said contract Sarah Piatt and Morris Piatt (whose names at the last-named date were Sarah Piatigorsky and Morris Piatigorsky) were the owners of the real estate described in the petition and bound themselves for a valuable consideration to the terms and conditions of the said contract.

It appears from the record that on August 7, 1928, the Piatts sold this property by general warranty deed to one S. D. Doney; that in this deed of conveyance no reference was made to the contract in question, and that on January 14, 1929, the said S. D. Doney conveyed the said premises to the defendant Harry E. Schmidt by general warranty deed, and that in such deed no reference was made to the contract .in question containing said restrictions.

Said Doney testified that he had no knowledge of the same and did not advise' defendant Schmidt of any such contract.

It further appears that after the defendant Schmidt became the owner of said premises he rented the same to members of the negro race, and as a result thereof this action was brought for a mandatory injunction requiring the said Schmidt to vacate the premises of negro occupants.

Counsel have favored the court with unusually exhaustive briefs in which many interesting questions are discussed and pertinent authorities cited.

We have had occasion to examine the question of restrictions in conveyances at different times, and especially in the cases of Williams v. Commercial Land Co., 10 Ohio Law Abs., 314, and Bulen v. Rice, 11 Ohio Law Abs., 175, being cases carried to the Court of Appeals of Franklin county.

We do not deem it necessary to discuss certain questions which were presented by counsel in their oral argument, and which are again stated in the briefs.

We think this case can be determined solely upon the question of notice of the restrictions given the defendant Schmidt. If the defendant Schmidt had no notice of the existence of such restrictions in the contract in question, then he could not be , bound thereby.

Such notice would necessarily be either actual notice or constructive notice of the existence of such restrictions.

A reading of the record satisfies us that Schmidt had no actual notice of the restrictions contained in said contract. He so testifies, and further states that he had an abstract of the property which he examined, and that the abstract contained nothing in reference to such restrictions. There is nothing in the record which would warrant a finding that the defendant Schmidt had actual notice of the restrictions in question at the time of the purchase of this property. There is nothing in his deed which would constitute notice to him.

Did he have constructive notice of the existence of this contract and of the restrictions contained therein?

It is admitted that this contract was placed of record in the office of the recorder of Franklin county, and was recorded in the deed records of Franklin county, prior to Schmidt’s purchase of the said property.

Does such record constitute constructive notice to the defendant Schmidt of the said contract? It will not require the citation of authorities to support the statement that the recording of an instrument does not constitute notice thereof unless its record is provided by statute.

Section 2757, General Code, provides as follows:

“The recorder shall keep four separate sets of records, namely: First, a record of deeds, in which shall be recorded all deeds, powers of attorney, and other instruments of writing for the absolute and unconditional sale or conveyance of lands, tenements and hereditaments; Second, a record of mortgages, in which shall be recorded all mortgages, powers of attorney, or other instruments of writing by which lands, tenements, or hereditaments are or may be mortgaged, or otherwise conditionally sold, conveyed, affected or incumbered in law; Third, a record of plats, in which shall be recorded all plats and maps of town lots, and of the subdivisions thereof, and of other divisions or surveys or lands; Fourth, a record of leases, in which shall be recorded all leases and powers of attorney for the execution of leases. All instruments entitled to record shall be recorded in the proper record in the order in which they are presented for record. ’ ’

The concluding paragraph of this section is to the effect that “all instruments entitled to record shall be recorded in the proper record in the order in which they are presented for record.”

It is admitted that this contract was recorded in the deed records of Franklin county, Ohio. Does such recording constitute constructive notice to the defendant Schmidt?

The only instruments for which the Code provides for recording in the deed records are the following: “All deeds, powers of attorney, and other instruments of writing for the absolute and unconditional sale or conveyance of lands, tenements and hereditaments.” A casual reading of the contract clearly discloses that the paper writing in question is not a deed, is not a power of attorney, and is not an instrument in writing for the absolute and unconditional sale or conveyance of lands, etc. It clearly does not fall within the description of the instruments which shall be recorded in the deed records, and the recording of which therein constitutes notice to the world.

Counsel for defendant Schmidt insists that it falls within the class designated as incumbrances, which are to be recorded in the mortgage record. It is unnecessary for us to determine whether it does or does not fall within the class of instruments which are to be recorded in the mortgage record, as it was not so recorded.

If we are correct in our conclusion that the recording of this contract in the deed records did not constitute constructive notice to the defendant Schmidt, and in the further conclusion that he had no actual notice of the existence of this contract, then the action in question cannot be maintained.

The finding will be in favor of defendant Schmidt, and the amended petition will be dismissed.

Decree accordingly.

Allkead, P. J., and Hornbeck, J., concur.  