
    Harris v. Paul et al.
    (Decided November 24, 1930.)
    
      Mr. Edward Blythin, for plaintiff in error.
    
      Mr. F. F. Truhlar, for defendants in error.
   Levine, J.

The parties occupy the same relative positions held in the common pleas court. The common pleas court denied the prayer of the plaintiff’s petition, which was to quiet title.

Henry Harris bases his claim to relief upon a sheriff’s deed which was issued to him on or about January 25, 1904, which sheriff’s deed was filed of record as of about that date. The defendant Wesley M. Paul claims under a deed which was issued to his parents by the owner December 8, 1898, and which was filed of record on December 21, 1903. The action brought by plaintiff to quiet title was brought under favor of Section 11901, General Code, which provides as follows: “An action may be brought by a person in possession of real property, by himself or tenant, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest ; or such action may be brought by a person out of possession, having, or claiming to have, an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein adverse to him, for the purpose of determining the interests of the parties therein.”

It will be seen that one of the essentials prerequisite to the right of any person to bring such action is that such person be in possession of real property by himself or tenant. It is admitted in this action •that neither party was in actual possession. Both sides rely upon the following statement of law found in 2 Corpus Juris, 244, Section 531, as follows:

“Where two persons claim under color of title, but neither is in actual possession, the superior title will prevail. The mere fact that the holder of the junior title claims the land cannot operate to defeat the constructive possession and title of the holder of the senior title.” Also on statements found in 22 Ruling Case Law, pages 80 and 81. Section 59 reads: “Properly speaking, constructive possession is that possession which the law annexes to the title.” Section 60 reads: ‘ ‘ The holder of a valid deed to real estate, whether it be a tax deed or a deed from the owner himself, impliedly and constructively has the possession of the property described in the deed.”

Prom our examination of the authorities we believe it to be an open question in Ohio whether the requirements of Section 11901, General Code, that a person bringing an action to quiet title must be in possession of real property, is satisfied by the mere constructive possession which follows title. There is room for argument that the statute intended that the person bringing such action must be in actual possession, and that otherwise he must resort to a different remedy.

We shall not dwell upon this point for the reason that it seems to be conceded by both sides for the purposes of this case that constructive possession, which follows the superior title, will satisfy the requirements of the statute.

As between the original grantor and the parents of defendant Paul, who were the grantees, and who received their deed in 1898, the title was a valid title and vested in them, even though the deed was not recorded.

As against subsequent bona fide purchasers, an unrecorded deed, by virtue of the Code, is deemed fraudulent. Section 8543, General Code, reads:

“All other deeds and instruments of writing for the conveyance or incumbrance of lands, tenements, or hereditaments, executed agreeably to the provisions of this chapter, shall be recorded in the office of the recorder of the county in which the premises are situated, and until so recorded or filed for record, they shall be deemed fraudulent, so far as relates to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of such former deed or instrument.”

Had the plaintiff received the sheriff’s deed prior to the recording of the Paul deed he would undoubtedly get the full benefit accorded to a subsequent purchaser, and, as to him, the deed of Paul’s parents, which was unrecorded, would have been deemed fraudulent. Wright v. Franklin Bank, 59 Ohio St., 80, 51 N. E., 876; Dow v. Union National Bank, 87 Ohio St., 173, 100 N. E., 328; Weir v. Snider Saw Mill Co., 88 Ohio St., 424, 103 N. E., 133, Ann. Cas., 1915B, 233. Had that been the case, the title of the plaintiff, which he received by virtue of the sheriff’s deed, would unquestionably be regarded as a superior title.

It is stipulated, however, by the parties, that the deed under which the defendant Paul claims was placed of record on December 21, 1903. From that time on all persons who acquired title in the land described in such recorded deed take it with constructive notice of the existence of such deed.

The plaintiff did not receive his sheriff’s deed until about January 25, 1904. Under the circumstances he took it with constructive notice of the existence of the Paul deed, and, therefore, took it subject thereto. In our opinion Paul has the superior title, and if it be, as is claimed from tbe authorities, that constructive possession follows superior title, such constructive possession must be deemed to be in Paul and not in the plaintiff, Henry Harris.

Holding as we do, the judgment of the common pleas court will be affirmed.

Judgment affirmed'.

Vickery, P. J., concurs.

Cline, J., not participating.  