
    Millison et al. v. Drake et al.
    
      (Decided July 24, 1930.)
    
      Mr. B. B. Sharp, for plaintiffs in error.
    
      Messrs. Wilson S Rector, for defendant in error Buckeye State Building & Loan Company.
    
      Mr. C. P. McClellandr for beneficiaries under will of Stephen C. Priest, deceased.
    
      Mr. George Marshall and Mr. B. W. Gearheart, for defendant in error Brake.
   Hornbeck, J.

Stephen C. Priest, deceased, was in his lifetime the owner of the real estate described in the second cause of action in the petition. He died testate, leaving a widow and five children — Ralph, who is married and has one child, Anna, Yerne, Francis, and John. His widow is over 70 years of age. In Ms will, by the second item thereof, he made the following provision:

‘ ‘ I give, devise, and bequeath to my beloved wife for her sole use and benefit during the term of her natural life, all of the fesidue of my estate, both real and personal, and, at her death, I direct that the same shall be distributed equally share and share alike between my children, and if any of my children not then be living, then the share of such to their child or children, if there be any then living.”

On the 27th of July, 1921, the widow and all of the children of Stephen C. Priest executed and delivered a deed of general warranty to the aforesaid premises to Gertrude Roebuck,

The plaintiffs in error, R. B. and Mary L. Millison, are the holders in title of said premises by mesne conveyances from predecessors in title, who held through the Priests; the deed of general warranty from William B. Drake and his wife, Anna M. Drake, to the plaintiffs in error was executed and delivered on the 28th day of August, 1925. Priests and successors in title were in possession at the time their deeds were made.

In the exchange of properties, the plaintiffs in error gave back'a purchase money mortgage to William B. Drake, defendant in error, and, upon condition broken, Drake brought Ms action in common pleas court for personal judgment against plaintiffs in error, and in foreclosure.

The plaintiffs in error by their answer deny that the defendant in error Drake is entitled to personal judgment or decree of foreclosure. The defendant the Buckeye State Building & Loan Company also holds a mortgage on the premises.

The claim of the plaintiffs in error is that the deed which they hold from defendant in error Drake, conveyed no title to them, and that there was no consideration for the note. They seek cancellation of the note and mortgage.

The trial court entered judgment for defendants in error.

The issue presented is, did the Priests, the widow and children of Stephen C. Priest, deceased, by their deed of general warranty, convey such an interest in the real estate described in the second cause of action of the petition as supported a valuable consideration therefor.

Their interest under the will at the time the deed was made was a life estate in the widow of Stephen C. Priest, deceased, with a vested remainder in his children, the share of each child subject to be divested at the death of the widow, if such child were dead leaving child or children then living. Jeffers v. Lampson, 10 Ohio St., 101; Niles v. Gray, 12 Ohio St., 320.

As suggested by counsel for defendant in error the Buckeye State Building & Loan Company, the principal test of a vested estate is the power of alienation. All of the children who survive their mother, though they may take a greater share than they possessed at the time of making the deed, will be estopped, under their covenant of general warranty, from asserting any right of title to the real estate in question.

At this time, the whole title in the real estate is vested in the widow and her children, no superior claim of title has arisen, and there is nothing operating to warrant the plaintiffs in error demanding any relief under the covenants of seizin and general warranty of title in their deed.

In 11 Ohio Jurisprudence, page 925, Section 54, it is said:

“It seems well established that no breach of the covenant of warranty occurs by reason of an outstanding title, until there is some hostile assertion thereof to which possession is yielded, or which is purchased in. It is not broken until the grantee, his heir, or assignee is evicted or disturbed in the enjoyment of the premises by a superior title.”

See, also, paragraph 1 of the syllabus in Great Western Stock Co. v. Saas, 24 Ohio St., 542.

Not only has the situation not reached the status set forth in the above quotation, but there is no outstanding title which can be asserted at this time.

In Stock Co. v. Saas, supra, the deed carried covenants of general warranty and seizin and was made by a grantee claiming under a deed from the life tenant only, yet the court at page 549 said:

“The Great Western Stock Company was in the undisturbed possession of the lands, under its deed from Saas. By this deed Saas had undertaken to convey to the stock company the whole of the premises in fee, with covenants of seizin and general warranty of title. According to the well-settled law of this state applicable to the undisputed facts of this case, there had been no breach of either of these covenants at the date of the judgment. It is not claimed that the covenant of general warranty had been broken; and it is no longer an open question in this state, that a covenant of seisin is not broken wntil eviction, either actual or constructive, in a case where the grantor was in actual possession of the lands at the time of conveyance, and where the grantee entered under the deed. [Stambaugh v. Smith] 23 Ohio St., 584, and cases there cited.”

The part of the quotation italicized disposes of the claim that the covenant of seizin has been broken in this case, and the citations from Thompson on Real Property, too, support the claim.

If this transaction .between Drake and the Millisons had been a cash purchase of the real estate, there would be no question that they would not at this time have any legal or equitable action against the Drakes, first, because there is no paramount title to that which comes from the Priests; and, second, no person is seeking to assert any superior title.

But it is asserted that Section 11902, General Code, applies. We do not think so. As a basis for any form of relief provided in the section, there must be a breach of the covenant of title and a claimant of an adverse interest, neither of which is found here.

In addition to invoking the provisions of Section 11902, General Code, the plaintiffs in error seek relief on the equity side of the court. There are equities with them which appeal to the court. There is a possibility, which seems remote, that their title may be impaired. It is true that the land will not sell for as high' a price as a perfect title would assure. However, plaintiffs in error had full advantage of the title record, and by their deed secured all that the record would support, and, in addition thereto, the covenant of seizin and general warranty from defendant in error Drake. In Hayes v. Skidmore, 27 Ohio St., 331, cited by counsel for plaintiffs in error, Hayes received but three-fourths of that which his deed purported to convey to him. There is no doubt that the Priests held a vested title in the property conveyed. There is left to the plaintiffs in error their right of action on the covenants in their deed, when and if it develops, which is at law only. Note to Foote v. Burnet, 10 Ohio, 317, at page 319, 36 Am. Dec., 90. To attempt to protect the plaintiffs in error from a contingency upon which they were put upon notice would logically provoke a series of suits between Drake and his predecessors in title — all based'upon the happening of an event which may never occur. We do not believe the facts require equitable intervention by the court.

Our attention has been directed to the cases of McCarthy v. Hansel, 4 Ohio App., 425, and La Roche v. La Roche, 10 Ohio App., 242. We have examined both of them carefully, and are satisfied that the courts in both instances were correct in their judgments. However, in both of them, an event had occurred which divested those who had attempted to convey their interests by deeds of general warranty, and the court properly held that for this reason the deeds did not operate to pass the title to the grantees. The second proposition of the syllabus of McCarthy v. Hansel seems to be in conflict with our decision in this case, and for that reason we are willing, if desired, to make certificate of conflict to the Supreme Court of Ohio.

We find no error in the judgment of the trial court, and it is therefore affirmed.

Judgment affirmed. .

Kunkle, P. J., and Allread, J., concur.  