13 Ohio St. 283 | Ohio | 1862
The amended petition of tbe plaintiff, in bis original action; states, in substance, that, in 1846, certain described lands then owned by him, were sold at judicial sale, under an order made in a proceeding which bad been instituted against him by a mortgagee of the premises, for the •enforcement of his mortgage lien; and that defendant’s intestate, Irvine, purchased the premises, at said sale, for the sum of $333.34, which was only two thirds of their appraised value, under a verbal agreement with the plaintiff that he would hold the legal title as a security for the sum so advanced by him in purchasing the premises, until the plaintiff could procure the means of redeeming the premises; the plaintiff agreeing, on his part, to pay Irvine “ a certain sum ” yearly, as a compensation for his investment. And that Irvine agreed to reconvey the premises upon the repayment of the sum so advanced.
The petition further states that the plaintiff, from time to time, paid Irvine the yearly compensation agreed upon, and that, on the 7th of April, 1848, he tendered to him the sum of $379.37J, which was the full amount of principal and interest then due on account of the purchase money so advanced by Irvine, and demanded a reconveyance of the premises; but that Irvine refused to accept the money so -tendered, and fraudulently claimed a right to hold the land
In his second cause of action, the plaintiff seeks to recover for the value of trees and timber, cut down from the premises-by Irvine, during his occupation thereof as aforesaid, and which he had appropriated to his own use.
In the third-cause of action, a recovery is sought for the value of wheat, oats, corn, sugar and molasses, delivered by plaintiff to Irvine, as a compensation for the advancement or loan of the said sum of $333.34, but which Irvine had; in the former chancery suit, by his plea therein, fraudulently claimed to have received from the plaintiff as rent, etc.
In the fourth and last cause of action, it is averred that,, after the final decree of the district court for the transfer of the legal title to the land from Irvine to the plaintiff, a tenant of Irvine, who had raised a crop of wheat upon the premises.
Upon general demurrer to this petition, as not stating facts sufficient to constitute a cause of action, the defendant had judgment in his favor in the court of common pleas, and that judgment was affirmed, on error, in the district court; and the question now presented, upon petition in error to reverse the judgment of the district court, is, Did the court of common pleas err in sustaining this demurrer?
We think the judgment in the court below was clearly right, as to the third and fourth causes of action, stated in the plaintiff’s petition. Por, as to the third, the petition shows that the matters for which th'e plaintiff seeks a recovery were, by the pleadings of the parties, submitted to the court for its adjudication, in the former suit in chancery between the plaintiff and the defendant’s intestate; that they consist of payments made by the plaintiff, under the .contract which he was then seeking to have specifically performed; that the court proceeded to final deoree in the case, in favor of the plaintiff, and did enforce the full performance of the contract by Irvine. The whole matter is. shown by the petition to be “ res adjudioata.”
And, as to the fourth cause of action, we see no grounds, either legal or' equitable, on which the plaintiff can rest his claim to the whole of the wheat harvested from the premises by the tenant, soon after the decree in the chancery suit. Having obtained the title to the premises by the decree of tneJ court, he had., therefore, a right only to the landlord’s share of the growing crops, or to a reasonable rent for the use of the premises. And having accepted, under these circumstances, one half of the crop from the tenant, and permitted him to retain the other half, we do not see the equity of a demand against the estate of Irvine for the value of the .tenant’s share.
It is conceded in argument by counsel for plaintiff that the matters which constitute these two causes of action, might have been adjusted, on supplemental bill, filed by the plaintiff, in the former proceeding in chancery between the parties; but it is claimed that this could only have been done by way of setoff, in reduction of the amount for which Irvine held a lien upon the premises, and that it was optional with the plaintiff, either to have the rents and profits so set off, or to reserve them as a cause of subsequent independent action. But we are not satisfied of the soundness of this position. The character which the petition assigns to Irvine during the pendency of the former suit' in chancery, is, substantially, that of a mortgagee. True, he held the legal title, but he held it only in trust, as a security for the payment of moneys advanced by him for the plaintiff’s use. After entering upon the premises, in virtue of his legal title, he may be regarded as a mortgagee in possession, after condition broken. Under these circumstances, he was liable to account for rents and profits, for the value of timber cut from the premises, and sold or otherwise appropriated to his own use. But the net income arising from such sources, a court of equity will always apply in reduction of the amount of the mortgage debt. 1 Hilliard on Mortgages. It is the right of each of the parties, mortgagor and mortgagee, to have it so applied; and neither of them can, without the consent of the other, apply it otherwise. Now, the petition shows that the very subjects of controversy, in the former suit in chancery, were the plaintiff’s right of redemption, and the terms upon which he was entitled to redeem; and that the final decree of the district court determined both these matters. The court found at its June term, 1854, that Irvine held the legal title only as a security for the payment of a debt due to him from the plaintiff, the decree ascertained the amount of the debt at that time, and upon its payment by the plaintiff, Irvine was ordered to convey the premises to him. This decree would
"We think the demurrer to the petition was properly sustained, -and the judgment of the district court will be affirmed.