22894 | Ohio | Mar 16, 1932
The plaintiff in error complains of the deficiency judgment recovered against him by the Auglaize National Bank in the foreclosure proceeding, on the theory that there is no evidence in the record to support such judgment.
The question then is presented whether there is some evidence in the record to support the judgments of the courts below, this court not being authorized to weigh the evidence but authorized to examine the record to see whether there is any evidence to support the aforesaid judgment.
The written agreement heretofore set forth between Baechler and Maus reciting, as it does, "C.R. Baechler has this day sold to H.P. Maus one hundred and sixty-six (166) acres of land located in Auglaize county, Ohio, and that Maus agrees to "assume mortgage indebtedness in the sum of $12,000.00," is not the only evidence indicating ownership of Maus and his liability in the premises. The facts and circumstances surrounding the parties, the inspection of the farm by Maus and his agent, the dominance of Maus in the entire transaction, such as payment of interest on both the first and second mortgages after the delivery of the deed, the payment by Maus of the taxes on the farm, the assumption agreement with the Virginian Joint-Stock Land Bank, which specifically states that H.P. Maus "has purchased said tract or parcel of land in said mortgage more particularly bounded and described," etc., the looking after the running of the farm, the ownership of the chattels on the farm, the taking of the proceeds of said farm, his stock in the Page Organ Company transferred to Baechler as a part of the consideration for the farm and representing the payment of Baechler's equity over and above *36 the Land Bank mortgage and the Auglaize National Bank mortgage; Baechler receiving no money, the improbability of Baechler selling his interest in his farm for the payment of the first mortgage and the seventy-five shares of the Page Organ Company stock, leaving himself liable on the Auglaize National Bank mortgage; the reluctance of Maus to admit the signing of the written agreement — these and other facts are evidence indicating the ownership of Maus, which, together with the conduct of the parties, the circumstances surrounding them, viewed from the advantage which the trial court had of observing the parties and hearing their testimony, their manner of testifying, all taken together afford some evidence which tends to support the judgment of the trial court in finding a promise of assumption of the mortgage of the Auglaize National Bank on the part of H.P. Maus.
The judgments of the court of common pleas and of the Court of Appeals are therefore affirmed.
Judgments affirmed.
MARSHALL, C.J., DAY, KINKADE, and STEPHENSON, JJ., concur.
JONES, J., not participating.