27 Ohio C.C. (n.s.) 497 | Ohio Ct. App. | 1916
In the court of common pleas The Equitable Life Assurance Society commenced an action for the foreclosure of a mortgage of $137,000 executed by The Walbridge Building Company. Among the defendants was a corporation known as The Nasby Build'ing Company, which latter company had become the lessee of the premises involved, known as The Nasby Building in the City of Toledo, for a period of 99 years from the 1st day of January, 1909. The
■ Numerous motions and demurrers were made and disposed of in the court of common pleas, and thereupon The Walbridge Building Company moved for judgment in its favor against The Nasby Building Company upon the pleadings, which motion was, on consideration, granted by the trial court and a judgment rendered excluding The Nasby Building Company from the possession of the real estate in controversy and awarding the same to The Walbridge Building Company “free and clear of any and all claims of said, The Nasby Building Company, on account of any of the matters and things set forth in the pleadings heretofore filed herein.” To this judgment The Nasby Building Company prosecutes error.
It is insisted that the judgment of the trial court is wrong for the reason that The Walbridge Building Company having in its original cross-petition elected to demand payment of the rent which had accrued, and having procured the appointment of a receiver who had taken possession of the property, had thereby waived the right to insist on a forfeiture of the lease and to recover possession of the premises by reason of default in making the payments stipulated therein. We can not accede to this contention. This branch of the case is within the principles announced by Judge
Counsel further insist that the cross-petitioner is not entitled to recover the premises because of failure to make demand and give proper notice to justify a forfeiture of the lease. It is a sufficient answer to this contention that the lease itself waives these requirements, and those provisions we hold to be valid.
The most important question in this case is the one raised as to the application of the statute of limitations to the contention made by The Nasby Building Company, that the lease was induced by means of fraudulent representations of The Walbridge Building Company. Those representations, whatever they were, appear to have been made in December, 1908. The petition for the foreclosure of the mortgage in this case was filed in April, 1915, and the amended and supplemental cross-petition of The Walbridge Building Company was filed on August 21, 1915. The Walbridge Building Company by reply sets up the statute of limitations of four years, and insists that any claim made on account of fraudulent representations is barred by that statute. The court of common pleas sustained this contention and for that reason entered the judgment already stated. It will be noted from the pleading filed by The Nasby Building Company that it does not ask for the cancellation or rescission of the lease by reason of the claimed fraudulent representations, but
The lease provides not only for the payment of rent, but contains appropriate provisions for the payment of the mortgage indebtedness held by The Equitable Life Assurance Society, and the allegations of the pleadings show that the defendant, The Nasby Building Company, violated its obligation in that regard as well as its obligation to pay the rent and the unsecured indebtedness of $13,000 to The Walbridge Building Company.
In view of the fact that The Nasby Building Company does not claim a rescission or cancellation of the lease on account of the alleged fraud, but seeks only to recoup damages by reason thereof, if the judgment in the court of common pleas had proceeded only to the extent of- adjudging that The Walbridge Building Company was entitled to the possession of the premises it would be free from prejudicial error; but it goes much farther than simply to adjudge the possession of the premises of that company, and decides that
The judgment will be reversed and the cause remanded for further proceedings according to law.
Judgment reversed, and cause remanded.