Martin v. Vandeveer

41 Ohio St. (N.S.) 437

Opinion

By the Court.

The bill of exceptions presents all the evidence taken at the trial. The only conflict was occasioned by a claim of Vandeveer which was not made until the action had been pending six years; had been tried in the common pleas, and an appeal taken. The manifest weight of the evidence showed the following facts: Schwab’s deed to Vandeveer was delivered about 9 o’clock in the forenoon. Davis then held full title and possession. Later, on the same day, Davis’s deed to Schwab, and Schwab’s mortgage to Davis, were exchanged at the same moment. The mortgage was promptly entered for record.

Held: 1. The deed to Vandeveer passed no title when delivered.

2. Its covenant of warranty enured to Vandeveer so far only as title afterwards vested in Schwab; to wit, subject to the lien of the mortgage to Davis.

Judgment reversed.