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Vol. 2007-12 December, 2007

Real Property, Title Transfer in Judicial Sale by Sheriff

The controlling case law of Ohio provides, as a matter of law, that upon sale of real property by judicial decree / Sheriff's sale, the ownership and control of said property also transfers on that same date. The Court, in a case that is still the law of Ohio, addressed the issue of date of transfer of title. The Court held, in pertinent part:

"A purchase under a decree in equity becomes the substantial owner of the property from the moment of final ratification of the sale, and he is entitled to and can recover the rents and profits of the estate.

By such sale the dry legal title and the right of possession often become completely severed, at least for a time, the legal title remaining in some of the parties to the cause, while the equitable estate and right of possession become vested in the purchaser. After the decree and before sale the possession of and title to the property are vested in the court. 3 Bland, 60; 6 Gill, 103.

This must be so for the sale of a trustee is a sale by the court to the purchaser, the trustee being but the agent of the court to make the sale. 6 Gill, 228; 1 Md. Ch. Dec., 241; 11 G. & J., 8; 19 Md., 391; Lathrop v. Nelson, 4 Dill. (13. S.), 194.

The English doctrine on this subject seems to be supported by the weight of American authority (Taylor v. Cooper, 10 Leigh, 317; Wagner v. Cohen, 6 Gill. Md., 102), but the decisions are conflicting. Armstrong v. McClure, 4 Heisk. Tenn., 80; re Bledsoe, 12 Bankr. Reg., 402.

It is also an established law in Ohio, that "where lands subject to a mortgage, are sold under a decree of foreclosure, the emblements of a lessee are protected, and do not pass to a purchaser under the decree." Cassilly v. Rhodes, 12 Ohio, 88; Houts v. Showalter, 10 Ohio St. 124;

Gorrell v. Kelsey, 40 Ohio St. 117; Reed v. Radigan, 42 Ohio St. 292; Trust Co. v. Gibbon, 10 Ohio St. 566.

In states where confirmation is required, the purchaser obtains no vested rights until after the sale is confirmed, and if the confirmation (which depends upon the sound discretion of the court), is refused, the rights of the purchaser fall to the ground. Taylor v. Gilpin, 3 Met. (Ky.), 544; Hunting v. Walter, 33 Md., 60; Rorer on [545] Judicial Sales, section 10; Sowards v. Pritchett, 37 Ill., 517; Fiedeldey v. Diserens, 26 Ohio St. 312.

BY THE COURT: The general doctrine relating to the effect of the confirmation of a judicial sale is that it relates back to the day of sale and passes a title as of that day. The deed executed pursuant to the order of confirmation by relation takes effect as of the day of sale. This is the established doctrine in Ohio. Lessee of Boyd v. Longworth, 11 Ohio, 236; Oviatt v. Brown, 14 Ohio, 286." JASHENOSKY v. VOLRATH. (1899), 59 Ohio St. 540.

History is the version of past events that people have decided to agree upon.

Napoleon Bonaparte

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

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