Hodesh v. Hallerman

186 N.E. 921, 45 Ohio App. 278, 14 Ohio Law. Abs. 395, 1933 Ohio App. LEXIS 554

• Court: Ohio Court of Appeals
• Decided: January 9, 1933
• Docket: No 4156
• Status: Published

Opinions

HAMILTON, J.

There are several specifications of error presented.’ Among them is the claim that thei statute of frauds presents an absolute bar to the claim that there is any validity in the lease, and that by reason thereof the question of agency in the form presented is not available.

We will first take up the question of the statute.

Sec 8510, GC, provides:

“A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor, * *

It must be borne in mind that the lease in issue was not signed by the owner of the property. To overcome this obstacle, as heretofore stated, Hallerman seeks to invoke the rule of estoppel as against her by virtue of the fact that the lease, while signed by Isadore Hodesh, that he being the husband of Jeanette Hodesh and the manager of her property, that she would not be heard to deny the lease.

Sec 8513, GC, provides:

“A power of attorney for the conveyance, mortgage, lor lease of any estate or interest in real property, must be signed, attested, acknowledged, and certified in the same manner as deeds, mortgages, and leases.”

We have, therefore, the situation of an agent signing the lease in his own name, without any written authority therefor. This situation furnishes a complete bar to any claim as against the owner of the property, in this case Jeanette Hodesh.

It is suggested in the brief that §8517, GC, is a saving clause, in that the lease is a temporary lease, and §8517 GC provides:

“Nothing in this chapter contained shall affect' the validity of ajiy lease * * * for any term not exceeding three years; * *

And argues that the lease being for six months, with the privilege of renewal for four years and six months, does not take the lease out of the class of temporary leases, but that it remains a lease for six months. This contention is answered in the case of The People’s Building, Loan & Savings Co. v McIntyre et, 14 Oh Ap, 28, wherein this court held:

' “The option provided in the lease for four consecutive years must be held to be “an interest in real property,” and would bring the lease within §8510 GC, requiring acknowledgment and attestation of the same.”

This is further supported by the case of Toupin v Peabody, 162 Mass., 473, where in the course of the opinion the court states:

“A lease for five years, with the right to have a renewal for five more, is as much within the mischief which the statute seeks to remedy as a lease for a term of ten years, and the reasons for requiring the latter to be recorded apply equally to the other, so far as the renewal term is concerned.”

Our conclusion is that the lease is within the terms of §8510, GC, requiring the same to be signed by the grantor, or her agent, under power of attorney executed in accordance with §8513, GC.

There being no binding lease upon Jeanette Hodesh, the owner of the property, she was not and could not be liable for a breach.

Since this determines the case, the other questions are not considered.

The judgment of the Court of Common Pleas will be reversed and that of the Municipal Court affirmed.

ROSS, PJ, and CUSHING, J, concur.