Berry v. Cleveland Trust Co.
Decision Date | 06 December 1935 |
Citation | 53 Ohio App. 425,5 N.E.2d 702 |
Parties | BERRY v. CLEVELAND TRUST CO. |
Court | Ohio Court of Appeals |
Syllabus by the Court.
1. Where, in pursuance of a written contract to convey certain real estate, a deed is executed and delivered which contains stipulations to be performed by the grantee that were not a part of the original contract, the contract is not necessarily executed by or merged in said deed. The rights of the parties must be determined by a consideration of both instruments and the surrounding circumstances.
2. Evidence on behalf of a defendant consisting of facts which without confessing and avoiding, tend to disprove allegations of the petition or evidence adduced thereunder, is admissible under a general denial of such allegations, even though such facts are affirmative in nature; but evidence on behalf of a defendant consisting of facts which, although they do not contradict allegations of the petition or evidence adduced thereunder, seek to destroy the effect of those allegations by showing nonliability of defendant notwithstanding the existence of plaintiff's claims, is not admissible under a general denial of such allegations such facts must be affirmatively pleaded.
Hamilton, Kramer & Wiles, of Columbus, for plaintiff in error.
Fauver & Fauver, of Elyria, for defendant in error.
On February 3, 1932, the Cleveland Trust Company, as trustee under the will of David S. Troxel, deceased, filed its petition in the common pleas court of Lorain county against Clement R. Bates, Paul F. Berry, and certain alleged mortgage lienholders, for foreclosure of a mortgage on certain real estate in the city of Elyria, and for personal judgment against Bates and Berry on the note secured by such mortgage. Personal judgment was asked against Berry by virtue of a provision in the deed to Berry which purported to obligate Berry to assume and agree to pay the mortgage.
The record discloses that on and prior to April 6, 1926, the Cleveland Trust Company, as such trustee, sold and conveyed certain real estate in Lorain county to Clement R. Bates for the sum of $125,000, of which $25,000 was paid in cash, and for the balance of which a note secured by first mortgage on the premises was given by Bates to the trust company as such trustee; that such note and mortgage were the basis of the suit in the court below; and that on April 6, 1926, Bates sold and conveyed the premises by warranty deed to the Elyria Properties Company, a corporation, clear of encumbrance except the mortgage for $100,000.
There is nothing in the deed or in the evidence to indicate that the Elyria Properties Company agreed to assume and pay the mortgage, and it was not made a party to the action.
It was thereafter learned that Bates had died prior to the time the petition was filed, so of course no attempt to serve summons upon him was made.
The record further shows that the Elyria Properties Company conveyed the premises to Paul F. Berry by warranty deed dated September 15, 1926, which deed was filed for record on October 4, 1926, and contained the provision that the premises were ‘ free and clear from all encum brances whatsoever excepting first mortgage in the amount of $100,000, now reduced to $95,000, held by the Cleveland Trust Company, Trustee, and a second mortgage in the amount of $25,000 now reduced to approximately $24,000 to the Fidelity Mortgage Company and taxes for 1926, which the grantee herein assumes and agrees to pay’ ; that Berry took possession of the premises under such deed, and, up to the time the foreclosure suit was commenced, collected the rents for the premises, and paid the interest on the mortgage debt for about five years and $2,500 on the principal; and that on November 23, 1932, and during the pendency of the case below, but before personal service was obtained upon Berry, he transferred the premises by quitclaim deed to one William E. Knight, who was the agent of Berry that closed the deal with the Elyria Properties Company, and who, upon his own motion, was made a party defendant and filed his answer in the court below long before the trial.
The deed from Berry to Knight was duly filed for record on November 26, 1932.
Although numerous alias summonses were issued for Berry, personal service was not obtained on him until July 31, 1933.
The only matter contested at the trial in the common pleas court, other than objection to the jurisdiction over the person of Berry and the question of misjoinder of causes of action against the several parties defendant, was the question as to whether or not Paul F. Berry had assumed and agreed to pay the mortgage debt and thereby became personally liable therefor.
The case was tried before the court and a jury. At the close of all the evidence the trial judge overruled a motion of the defendant Berry for a directed verdict in his favor, and sustained a motion of plaintiff for a directed verdict in its favor, to all of which defendant Berry excepted. Motion for a new trial was duly filed and overruled, and the cause is here on the petition in error of Berry against the Cleveland Trust Company as trustee.
Berry will be hereinafter referred to as defendant, and the Cleveland Trust Company as such trustee, as plaintiff, as they were below; they being the only parties in this court in this case.
Counsel for defendant claim numerous errors prejudicial to him, committed in the trial court, among them being the overruling of his motion to quash the service of summons, the overruling of his objection to the jurisdiction of the court over his person in that case, the overruling of his motion to strike certain matter from the amended petition and to make the same more definite and certain, the overruling of his demurrer to the amended petition, the overruling of his motion to direct a verdict in his favor both at the end of plaintiff's case and at the close of all of the evidence, and the sustaining of the motion of plaintiff at the close of all of the evidence to direct a verdict in its favor, the rejection of certain evidence offered by defendant, and the overruling of his motion for a new trial.
We have carefully considered all of the numerous errors complained of by defendant, all of which were argued orally at length and are argued at great length in both the original and the reply briefs of defendant, and we find none of them to be prejudicial to him, save and except one, which we will hereinafter discuss.
The amended petition alleged, as a part of the first cause of action, ‘ that as a part of the consideration of the transaction’ whereby the Elyria Properties Company deeded the premises to Paul F. Berry, ‘ the defendant Paul F. Berry assumed and agreed in writing to pay the mortgage indebtedness to this plaintiff; that said indebtedness was the promissory note above described.’
The answer of defendant, after denying the jurisdiction of the court over his person and alleging in substance that the several causes of action against the several defendants were improperly joined, was a general denial.
The reply to the answer was also a general denial.
At the trial defendant claimed that it was not a part of the agreement between him and the Elyria Properties Company that he would assume and...
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