JOHN F. MACKIN, Judge.
On February 3, 1986, Gertrude I. Ladikos transferred the real estate which is the subject of this action to her daughter, Dioniasea Lugar, and to her son, Christopher Ladikos, the plaintiff herein, by survivorship deed.
In 1987, Dioniasea's son, Russell, the defendant, was experiencing financial difficulties and, at a meeting between Dioniasea, Christopher, and Russell, Christopher agreed to allow Russell to occupy the premises and that Russell would not pay rent until "he got on his feet." Plaintiff, Christopher, continued to garden the property and keep an old vehicle in the garage. In 1988, plaintiff demanded rent for the property from defendant, Russell, who was now working. Plaintiff received no payments of any kind in 1988, 1989, 1990, and 1991. Defendant was working at a job with substantial income at least during 1989 and 1990.
In January 1991, plaintiff requested defendant to leave the premises or pay fair rental.
In 1991, defendant started making payments of over $400 a month to his grandmother, the original donor-owner of the property, and he acknowledged the payments to be the fair rental value of the property.
However, on August 12, 1991, plaintiff gave to defendant the statutory notice to leave the premises through his counsel by certified mail.
This action of forcible entry and detainer, with no second cause of action, was commenced September 23, 1991. Subsequent to the service of summons in this action, on October 4, 1991, a quitclaim deed executed by Dioniasea Lugar to her son, Russell J. Lugar, defendant, and his wife, Mary Lou Lugar, was recorded in Volume 449 at pages 332 and 333 of Lorain County Records. This matter came on for trial on December 19, 1991.
The first issue to be determined is the effect of a quitclaim conveyance from a partial survivorship owner to a party who is not a survivorship tenant.
R.C. 5302.20(C)(2) provides:
"* * * A conveyance from any survivorship tenant, or from any number of survivorship tenants that is from less than all of them, to a person who is not a survivorship tenant vests the title of the grantor or grantors in the grantee, conditioned on the survivorship of the grantor or grantors of the conveyance, and does not alter the interest in the title of any of the other survivorship tenants who do not join in the conveyance."
Therefore, Christopher's (plaintiff's) interest is unchanged, Dioniasea's partial interest is conveyed, and Russell (defendant) and his wife, Mary Lou, now have Dioniasea's former interest, conditioned upon Dioniasea surviving Christopher. Hence, at the date of the trial, Russell owned a present interest in the property.
The second issue is the application of the doctrine of lis pendens to an interest acquired in the property by the defendant in an action pending in court.
The foregoing doctrine is codified in R.C. 2703.26 as follows:
"When summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency. While pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff's title."
The situation in this case is the opposite of the situation guarded against by lis pendens. It is not third persons who are not parties to the suit, but instead, the sole defendant, without an interest, who acquired an interest.
Therefore, the purpose of lis pendens, to prevent the transfer to nonparties of defendant's interests during the pendency of the trial, is not applicable. Further, the statute is specific — transfer to third persons.
Although it is "established that any co-owner of real property has a right to enter upon the common [estate] and take possession * * *, subject to the right of his co-tenants to take possession[, it is further established that] one joint tenant cannot recover sole possession from another co-tenant. He can only share possession. 4 Thompson on Real Property (1979) 222, Section 1810." Collins v. Jackson (1986), 34 Ohio App.3d 101, 103, 517 N.E.2d 269, 271. "[A] co-tenant has a possessory interest in the property and is not subject to eviction." Id.
The court orders that this cause be dismissed because defendant has a possessory interest in the property and is not subject to eviction. Costs to defendant.
Cause dismissed.