For the reasons given, and upon the authorities cited, we hold that the claim of the plaintiff is not barred by the statute of limitations.

We hold, however, that it was prejudicial error for the trial court to admit the evidence of Curson as to his having a conversation with Bevins on the subject involved in this litigation, and that in view of the other evidence contained in the bill of exceptions this error is so prejudicial as to require a reversal of the judgment.

Judgment reversed, and cause remanded for new

trial.

KINKADE and CHITTENDEN, JJ., concur.

SCHLOSS V. BROWN ET AL.

Landlord and tenant - Leases - Defective execution Estate of lessee - Title of purchaser of property.

1. A lease of real property for a term of five years, properly signed by both parties, but acknowledged by the lessee only, operates to create an equitable estate in the lessee.

2. One who purchases realty which at the time is in the possession of a lessee under a defectively executed lease, and who at the time of the purchase is aware of the possession of the premises by such lessee, acquires the ownership from the vendor subject to the equitable rights of the lessee in possession.

(Decided May 26, 1920.)

APPEAL: Court of Appeals for Butler county.

Messrs. Andrews & Andrews and Mr. Benton S. Oppenheimer, for plaintiff.

Mr. P. P. Boli and Mr. W. C. Shepherd, for defendants.

SHOHL, P. J. The plaintiff, Alfred J. Schloss, was the tenant of one John A. Holzberger, occupying a store room in High street in the city of Hamilton. He had occupied the premises for a number of years, during the last five of which he had a lease, expiring December 31, 1917. Shortly after the expiration of the lease, the parties, on February 25, 1918, agreed to renew the lease for five years, and a written instrument was drawn up and duly signed by the parties. Plaintiff acknowledged it before a notary public in Hamilton county, but Holzberger never acknowledged it. It was recorded, however, on May 15, 1918. Eight days prior to the recording of the document, Holzberger sold the property to defendant, Walter S. Brown. A dispute arose as to whether Brown was bound by the terms of the lease, and Schloss filed this action for specific performance, joining his landlord and Brown, the transferee.

The plaintiff had occupied the store room continuously up to and including May 7, 1918, when Brown acquired a deed for it, and Brown for years was aware of his occupancy.

There was a conflict of testimony as to whether Brown had actual knowledge of the transaction between Holzberger and Schloss at the time he took his deed and paid the money. The evidence was taken partly in open court, and there is also a transcript of the testimony heard at the trial in the court of common pleas. In view of the conclusions

of the court on certain legal proposition. it has not been found necessary to pass upon the question of fact presented. The lease to Schloss, though not attested as required by Section 8510, General Code, was good between the parties as a contract. An imperfectly executed lease may operate to create an equitable estate in the lessee, if it be plainly shown that the instrument was intended as a lease and was accepted and treated as such by the lessee. Lessee of Foster v. Dennison, 9 Ohio, 121; Williams v. Sprigg, 6 Ohio St., 585; Holden v. Belmont, 32 Ohio St., 585; Lithograph Bldg. Co. v. Watt, 96 Ohio St., 74, and Allegheny Oil Co. v. Snyder, 106 Fed. Rep., 764, 769.

Under Section 8543, General Code, a lease for five years is deemed fraudulent until it is recorded, or filed for record in the office of the recorder, so far as relates to a subsequent bona fide purchaser having at the time of purchase no knowledge of the existence of such lease. If Brown was not a bona fide purchaser, he would take the property subject to the equitable right which is now admitted to have existed against Holzberger. It is the settled rule in Ohio that a purchaser of land which is in the actual possession of a third party, known to him, is chargeable with notice of any equitable title of the party in possession whatever the same may prove to be. McKinzie v. Perrill, 15 Ohio St., 162; Kelley v. Stanbery, 13 Ohio, 408; Williams v. Sprigg, 6 Ohio St., 585, 594; Ranney v. Hardy, 43 Ohio St., 157; Day, Williams & Co. v. Railroad Co., 41 Ohio St., 392; Columbus, S. & H. Rys. Appeal, 109 Fed. Rep., 177, 206, and note 13 L. R. A., N. S., 49, 66, 73, 96.

App.]

Bello v. City of Cleveland.

The undisputed evidence shows that Brown was aware of the possession of the premises by Schloss. He, therefore, acquired the ownership from Holzberger, subject to the equitable rights of Schloss arising under the unrecorded contract of lease.

The prayer of the petition for specific performance will be granted.

Judgment for plaintiff.

HAMILTON and CUSHING, JJ., concur.

BELLO V. THE CITY OF CLEVELAND.

Negligence - Liability — Municipality or abutting owner-Injury to pedestrian-Cave-in along sidewalk - Notice of condition or nuisance-Primary and secondary liability - Accord and satisfaction.

1. Where the owner of property abutting upon a city street has a pipe running underground from a boiler on his premises to the sewer in the street, and there is a leak in such pipe under the sidewalk causing the subsoil to be washed away, leaving a pool of hot water, a pedestrian who steps off the sidewalk onto a narrow strip of land about a foot wide between the walk and fence which is the boundary line of the abutting lot, and breaks through the crust of earth over the pool and is scalded, cannot recover damages from the city for such injury where there is no evidence tending to show that the city had or should have had notice of the condition of the subsoil, or the existence of the hot water, and there is nothing to lead a reasonable person to suspect that there might be hot water beneath the surface which might cause injury to pedestrians.

2. In such case the abutting property owner who actively created the nuisance is primarily liable, and a recovery against him is a bar to an action against the city for the same injury. The city's liability, if liable at all, is statutory.

(Decided May 28, 1920.)

Bello . City of Cleveland.

[13 Ohio

ERROR: Court of Appeals for Cuyahoga county.

Messrs. Mathews, Bell & Winsper, for plaintiff

in error.

Mr. James Cassidy, assistant city law director, for defendant in error.

WASHBURN, J. The record discloses that Frank Bello sued the city of Cleveland to recover damages for personal injury sustained by him when he stepped off the sidewalk onto a narrow strip of land about one foot in width between the walk and the fence, which was on the property line of the adjoining lot, which was used for manufacturing purposes.

The manufacturing company had a pipe running underground from its boiler and connecting with the sewer in the street; there was a leak in the pipe under the sidewalk, and the hot water escaped, which caused a part of the earth near the curb and twelve or more feet from the place of the accident, to settle down, leaving a hole; the city being notified of the hole, but not knowing the cause of it, filled it up; a day or so later, and before any other cave-in appeared, the plaintiff, while walking along the sidewalk, stepped onto the ground on the opposite side of the walk and broke through into a hollow space containing hot water, and steam, and his leg was scalded. The cause of the cave-in was discovered after the accident.

In the petition plaintiff claimed that he fell into an open excavation filled with boiling water, and that the city had notice of the existence of the same and negligently allowed it to exist in the street,