Wright v. McCullough , 56 Ohio App. 153 ( 1936 )

This cause comes into this court upon a petition in error from the Common Pleas Court of Licking county, Ohio. The cause was submitted to the lower court upon an agreed statement of facts, and is submitted to this court upon the same statement of facts, which in substance is as follows:

It is agreed that the plaintiff, Ellis Wright, treasurer, filed his petition on the 28th day of October, 1931; that personal service was had on Pearl McCullough; that final judgment was rendered in favor of the plaintiff on December 3, 1931; that the taxes due on the premises December 20, 1929, were paid December 27, 1929; that such taxes were not delinquent the length of time required by statute to authorize foreclosure proceedings for the collection thereof; that the property was ordered sold by the court, and was sold by sheriff's deed to Mabel Priest and Irvin Priest for the sum of $330; that after the payment of the costs and taxes the balance of the sale price, to wit, $250.02, was paid to Pearl McCullough; that at the time of the sale, taxes in the amount of $21.13 were due on the premises; that Pearl McCullough was dispossessed of said real estate in January, 1932, and has not received any income therefrom to date; that the reasonable rental value of said premises is and was $8 per month; that on the 9th day of July, 1932, the defendants, Ernest E. Drumm and Florence Drumm, purchased said property from Mabel and Irvin Priest for the sum of $450, and that they have expended the sum of $150 for improvements.

It is also agreed that Ernest E. Drumm and Florence Drumm would testify that they had no actual notice of any irregularities in the sale of the property, or any defects in the title, and that they made no examination of the title to the property or caused any examination thereof to be made.

It is further agreed that on the 23rd day of May, 1935, the court, on the petition of Pearl McCullough, set aside the judgment heretofore rendered in this case and granted defendant below leave to plead, whereupon defendant, Pearl McCullough, filed her answer asking that plaintiff's petition be dismissed, and for all further and proper relief.

So that, upon the foregoing statement of facts, we have the situation of Pearl McCullough asking for the vacating of a judgment rendered at a previous term of the Common Pleas Court, and we note that under Section 11580, General Code, it is specifically provided that if such a petition is filed such application must be made when with reasonable diligence the grounds for a new trial could not have been discovered before, but were discovered after the term at which the decision was rendered or made.

We note that there was no allegation in the petition that Pearl McCullough used reasonable diligence, or that the grounds to vacate the judgment were discovered after the term of court at which it was rendered, or after the use of reasonable diligence on her part.

The petition alleges that Ernest E. Drumm and Florence Drumm purchased this real estate by virtue of a judicial sale which they claim was irregular and obtained by fraud on the part of Ellis Wright, treasurer, as plaintiff.

Section 11633, General Code, provides:

"The title to property which is the subject of the judgment or order sought to be opened, and which, by or in consequence of the judgment or order has passed to a purchaser in good faith, shall not be affected by proceedings under the next two preceding sections; nor shall the title to property sold before judgment under an attachment be thereby affected."

We are of the belief that this section was enacted to provide protection to purchasers at a judicial sale from defects in the proceedings in obtaining the judgment and order of sale. In this case we have what might be termed innocent fourth parties, Ernest E. Drumm and Florence Drumm, who purchased the property from Mabel and Irvin Priest, the original purchasers at the sheriff's sale.

Section 11702, General Code, provides:

"If a judgment, in satisfaction of which lands or tenements are sold, be thereafter reversed, such reversal shall not defeat or affect the title of the purchaser. In such case restitution must be made by the judgment creditor, of the money for which such lands or tenements were sold, with lawful interest from the day of sale."

Under the title Judicial Sales, 24 Ohio Jurisprudence, 91, Section 126, sets out the following rule:

"A sale, under a judicial order, ought always to confer upon the purchaser a title freed from all claims of the litigant parties. And it is an elementary proposition that when property is sold in a judicial proceeding, the sale vests title in the purchaser free from all rights of all parties to the action."

Under Section 128, it is said:

"A purchaser at a judicial sale who has made his purchase and paid his money upon the faith of proceedings regular on their face, had in a court of competent jurisdiction, and without actual or constructive notice of any defects therein or outstanding equities, occupies the position of a purchaser in good faith for a valuable consideration, and is protected as such."

Section 129 further says:

"Judgments of courts having apparent jurisdiction of the subject-matter and parties in an action are conclusive as to matters purporting to have been adjudicated, and * * * especially where the rights of innocent third persons, who are purchasers at judicial sales made under the alleged void order of courts, have intervened."

We believe that the public policy of this state is to protect the title of purchasers at judicial sales who purchase relying upon that verity which the record itself imports. That this public policy of the state has been recognized in a measure by the Legislature is revealed from an examination of statutes, as a result of which it is held that the reversal of a judgment under which lands and tenements are sold shall not defeat or affect the title of the purchaser. Sound public policy demands the rule that innocent persons who purchase relying upon the verity of judicial records shall be protected in their purchases.

The Supreme Court of Ohio, in the case of Stewart v. Kellough,104 Ohio St. 347, 135 N.E. 608, held that the title of a purchaser for value in good faith is protected by Section 11633 against the consequence of having a judgment vacated under Section 11631, and that the right to have a judgment vacated under Section 11631 does not constitute lis pendens so as to charge a bona fide purchaser with notice.

The Supreme Court of Ohio, in Hedger v. Hammond, 128 Ohio St. 51, 190 N.E. 577, in dismissing the petition in error filed therein, thereby affirmed the Court of Appeals, in the case ofHedger v. Hammond, 47 Ohio App. 397, 192 N.E. 10, which said on this proposition, at page 398:

"Having accepted his distributive share without objection * * * the plaintiff in error will not be heard to complain of some objection to the procedure to sell the real estate."

We note that there was no prayer in the answer of Pearl McCullough for rents and profits, and even if there were such prayer we are of the opinion that there would be no authority in law for granting it. Pearl McCullough accepted her money, made no objections, filed no answer, and now comes into court without even offering to tender back the money she received, and asks the court to return the property to her after it has passed through two hands. We are of the opinion that to do this would be inequitable and unjust and not in accordance with the law and decisions of the state of Ohio.

We are therefore of the opinion that this case should be and the same hereby is reversed and remanded to the Court of Common Pleas for further proceedings according to law.

Judgment reversed and cause remanded.

SHERICK and MONTGOMERY, JJ., concur.