100 F. 17 | 6th Cir. | 1900
(after stating the facts as above). It is contended on behalf of the insurance company that no contract to make the loan is shown. We think it clear that the application for the loan, and the approval of it by the finance committee, who, it is conceded, had full power to make the loan, is quite enough to show
Nor is it material whether a term Avas added to the contract, by Avhich the title of the land to be mortgaged should be finally submitted to the certificate of Harmon, Colston, G-oldsmith & Hoadly, for the reason that we agree with the judgment of the judge on the circuit that the title here tendered was marketable. The only defects were two uncanceled mortgages of record; one dated March 8, 1847, to secure the payment of a note for |10,000, made by Stetson, then the owner of the land, in favor of Lawrence, and by him assigned to the Ohio Life Insurance & Trust Company. A cancellation of this mortgage is entered upon the record, but the cancellation is not signed by the mortgagee. The second mortgage is from the same mortgagor to the same mortgagee, dated January 8, 1849, and recorded January 8,1849. Its condition of the defeasance was the payment of a note for $15,060 at the rate of seven per cent. The evidence does not show how long these notes were to run, and we are left to infer that they were demand notes. The second mortgage is giAren upon the same day upon which the first mortgage was canceled. It is proven that the plaintiffs and their ancestor from whom the property was inherited have been in constant possession, as the owners of the property, for more than 21 years prior to the 'date of the application for the loan. These mortgages were, therefore, at the date of the application of the loan, 49 and 47 years old, respectively, and, so- far as is shown, the notes became barred by the statute of limitations in 15 years after the dates of the two mortgages, to wit, in ’62 and ’64. It is contended, however* that because, in Ohio, a mortgage conveys the legal title, and an action bf ejectment may be brought upon condition broken, the barring of the notes does not remove the defect of the title. It is argued that the possession of the mortgagor after condition broken is not adverse to that o.f the mortgagee, and, conseqTiently, that in Ohio the right of ejectment on a mortgage deed is never barred, and the statute of limitations does not begin to run on it unless the mortgagor shall have taken some affirmative step to repudiate the title of the mortgagee, and brought it to the latter’s notice. Allen v. Everly, 24 Ohio St,