City of Toledo v. Brown, No. 25398.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtJONES
PartiesCITY OF TOLEDO et al. v. BROWN.
Docket NumberNo. 25398.
Decision Date18 March 1936

130 Ohio St. 513
200 N.E. 750

CITY OF TOLEDO et al.
v.
BROWN.

No. 25398.

Supreme Court of Ohio.

March 18, 1936.


Error to Court of Appeals, Lucas County.

Action by Claude Brown against the City of Toledo and another. To review a judgment of the Court of Appeals which reversed a judgment for defendants, defendants bring error.-[Editorial Statement.]

Affirmed.

For convenience, the parties will be alluded to as they stood in the trial court, where Claude Brown was plaintiff and the city of Toledo and the New York Central Railroad Company were defendant.

Brown instituted suit in the common pleas court of Lucas county, seeking judgment in the sum of $15,352 and accrued interest on a claim based upon the impairment of his mortgage security. In his petition Brown alleged, inter alia, that on March 1, 1923, Allen E. and Clark E. Wells, who were owners of lots Nos. 14 and 15 in an addition to the city of Toledo, executed and delivered to him their mortgage deed, conveying the lots as security for a promissory note in the sum of $17,500; that the mortgage deed was duly filed for record on April 12, 1923, and recorded on April 17, 1923. Brown alleged that, at the time of filing his petition, there was ‘due and owing him’ the sum of $15,352 and accrued interest, which sum he averred to be a valid lien upon the mortgaged property; that the mortgaged lots abutted upon Monroe street in the city and also upon the railroad right of way at its intersection with that street, and that the entire frontage of the lots on Monroe street, prior ot the crossing elimination, was accessible at grade. His petition further alleges that in the year 1930, by ordinance and resolution of the city council, plans for the elimination of the grade crossing of the railroad at Monroe street were adopted, whereby the city and the railroad were to jointly proceed with such elimination. The prosecution of the work was to be under the joint control of the city and the railroad company, who were to divide expenses, and the compensation to be paid for real estate or property rights used for the construction of the improvement. The plans were accepted by the railroad company in writing. This improvement was consummated in the spring of 1931. The petition alleges that the completion of the work resulted in a lowering of the street level fronting the mortgaged property from 17 to 20 feet below its former level, ‘and rendered practically impossible ingress and egress thereto, and destroyed and greatly impaired the use of said premises for the purposes for which the same were suitable.’ The petition further stated that the mortgaged property ‘was of a value considerably in excess of the amount owing plaintiff on his promissory note secured by mortgage on said property, but upon completion of the work in said grade crossing elimination, and by reason thereof, said property is greatly depreciated in value and plaintiff's security is practically lost.’ The petition also stated that on March 31, 1933, Brown presented his claim for damages to the Director of Finance of the city for the sum of $15,352 and accrued interest, claiming such damages by reason of the grade elimination.

The railroad company filed an amended answer containing two defenses. In the first, it admitted substantially all the allegations contained in the petition excepting execution and delivery of the note and mortgage, the amount due and the amount of damages. The second defense alleged that Brown was a nonresident of the state of Ohio and a resident of the state of Missouri. It further pleaded that in accordance with sections 3818 and 8865, General Code, legal notice of the action of the city in the improvement proceedings was given to Brown as nonresident by publication in the local newspapers in June, 1930. It further pleaded that section 3823, General Code, and section 201 of the City Charter required owners of lots abutting upon proposed improvements to present their claims for damages in writing within two weeks after publication of notice and that any owner who failed to do so should be deemed to have waived such damages and should be barred from filing a claim or receiving damages. The published legal notice of June, 1930, was addressed to ‘Fred A. Rakestraw, Mary R. Rounds, Henry Brand, and to all other non-resident and resident owners of lots and lands affected by the improvement hereinafter mentioned.’ The notice recited that on May 5, 1930, the city council had adopted a resolution declaring the necessity and intent of the city of Toledo to join with the New York Central Railroad Company in the abolition of the grade crossing ‘by the construction of a subway in Monroe Street in said city, in accordance with the plans, specifications, estimates and profiles therefor now on file in the office of the Director of Public Service and open to public inspection.’ The notice recited that a change of grade would result from the improvement and required any lot owner or other person entitled to damages to present his claim therefor within two weeks after publication, and that, upon his failure so to do, the owner should be barred from receiving damages. The railroad company alleged that no claim for damages was filed by Brown until March 31, 1933, nearly three years after publication, and that therefore he waived damages and was barred from filing the claim or receiving damages.

The city also filed an amended answer setting forth substantially the same defenses as the railroad company, and, in addition, it pleaded a second defense, which alleged that on October 20, 1930, Clark E. and Allen E. Wells, in consideration of the payment of $23,500, signed a release to the city and the railroad company discharging them from ‘all damages, debts, claims, demands, action and causes of action whatsoever arising out of the separation of the grade of Monroe Street in connection with the property’ described in Brown's petition.

Brown filed replies admitting his nonresidence and the publication of notice in a newspaper of general circulation, but denied that the notice had any effect in barring his claim for damages.

Thereupon the city and railroad company separately moved for judgment in its favor upon the pleadings. The trial court granted these separate motions and rendered judgment in favor of the railroad company and the city. Brown prosecuted error to the Court of Appeals, which reversed the judgment of the trial court and remanded the cause to the trial court for further proceedings according to law. Thereafter we allowed certification of the cause to this court for review.



Syllabus by the Court.

[Ohio St. 513]1. A mortgagee, whether he is in possession or has the right of possession, may bring an action for the impairment of his mortgage security, and, since his action is based on the impairment of his mortgage security, he need not allege or prove the insolvency of the mortgagor.

2. Where the mortgagee's petition in such suit alleges that ‘there was due and owing him’ a certain sum secured by the mortgage, such allegation connotes the implication that a condition of the mortgage was broken; and, where the defendant goes to trial without objection or without interposing a motion to make such allegation definite and certain, the defendant will be deemed to have waived the objection.

3. An owner of lots abutting a street has a property right in the street in the nature of an incorporeal hereditament; and that property right passes to the owner of the mortgage, is included within the mortgage security, and cannot be taken by public authorities without compensation.

4. A mortgage, from the date of its filing, is constructive notice to every one who deals with the mortgaged premises. Those who thereafter institute condemnation proceedings or who [Ohio St. 514]settle the damages resulting from the appropriation of part of the premises are charged with such notice.

5. Under the facts pleaded in the petition herein, the mortgagee was entitled to relief unless he was forestalled by the defense that he, being a nonresident of the state, was legally served with notice by publication as required by state law and the city charter, each of which required him to present his claim for damages within two weeks after such publication. The published notice recited that the city and...

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20 practice notes
  • Genesco, Inc. v. Monumental Life Ins. Co., Civ. A. No. 81-2195-15
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 17, 1983
    ...although it did not assume the mortgage held by Monumental, Jowdy v. Guerin, supra, and although it is solvent, City of Toledo v. Brown, 130 Ohio St. 513, 200 N.E. 750 (1936); Hummer v. R.C. Huffman Const. Co., supra. Likewise, the value of the remaining security for the debt is immaterial,......
  • RFC Capital Corp. v. EarthLink, Inc., 2004 Ohio 7046 (OH 12/23/2004), Case No. 03AP-735.
    • United States
    • United States State Supreme Court of Ohio
    • December 23, 2004
    ...defendant's actions lessened the value of the plaintiff's security interest and (2) resulting damages. City of Toledo v. Brown (1936), 130 Ohio St. 513, 519; Ohio Valley Bank v. Copley (1997), 121 Ohio App.3d 197, 208; Trip Agency, Inc. v. Akkihal (Nov. 4, 1991), Lawrence App. No. {¶73} Alt......
  • Terry v. C. B. Contracting Co., No. 8356
    • United States
    • Court of Appeal of Missouri (US)
    • March 8, 1965
    ...141, 142. See Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645, 44 S.W. 802. 2 36 Am.Jur. Mortgages, Sec. 356, p. 868; City of Toledo v. Brown, 130 Ohio St. 513, 200 N.E. 750, 752; E. H. Ogden Lumber Co. v. Busse, 92 App.Div. 143, 86 N.Y.S. 1098, 3 59 C.J.S. Mortgages Sec. 338, p. 467, Footnotes 5......
  • Ohio Valley Bank v. Copley, No. 96CA582
    • United States
    • United States Court of Appeals (Ohio)
    • June 9, 1997
    ...one who lessens the mortgage security interest. Allison v. McCune (1846), 15 Ohio 726, syllabus. See, also, Toledo v. Brown (1936), 130 Ohio St. 513, 5 O.O. 168, 200 N.E. 750, paragraph one of the syllabus. In Allison, the court's rationale for allowing a suit by the mortgagee was the equit......
  • Request a trial to view additional results
20 cases
  • Genesco, Inc. v. Monumental Life Ins. Co., Civ. A. No. 81-2195-15
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 17, 1983
    ...although it did not assume the mortgage held by Monumental, Jowdy v. Guerin, supra, and although it is solvent, City of Toledo v. Brown, 130 Ohio St. 513, 200 N.E. 750 (1936); Hummer v. R.C. Huffman Const. Co., supra. Likewise, the value of the remaining security for the debt is immaterial,......
  • RFC Capital Corp. v. EarthLink, Inc., 2004 Ohio 7046 (OH 12/23/2004), Case No. 03AP-735.
    • United States
    • United States State Supreme Court of Ohio
    • December 23, 2004
    ...defendant's actions lessened the value of the plaintiff's security interest and (2) resulting damages. City of Toledo v. Brown (1936), 130 Ohio St. 513, 519; Ohio Valley Bank v. Copley (1997), 121 Ohio App.3d 197, 208; Trip Agency, Inc. v. Akkihal (Nov. 4, 1991), Lawrence App. No. {¶73} Alt......
  • Terry v. C. B. Contracting Co., No. 8356
    • United States
    • Court of Appeal of Missouri (US)
    • March 8, 1965
    ...141, 142. See Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645, 44 S.W. 802. 2 36 Am.Jur. Mortgages, Sec. 356, p. 868; City of Toledo v. Brown, 130 Ohio St. 513, 200 N.E. 750, 752; E. H. Ogden Lumber Co. v. Busse, 92 App.Div. 143, 86 N.Y.S. 1098, 3 59 C.J.S. Mortgages Sec. 338, p. 467, Footnotes 5......
  • Ohio Valley Bank v. Copley, No. 96CA582
    • United States
    • United States Court of Appeals (Ohio)
    • June 9, 1997
    ...one who lessens the mortgage security interest. Allison v. McCune (1846), 15 Ohio 726, syllabus. See, also, Toledo v. Brown (1936), 130 Ohio St. 513, 5 O.O. 168, 200 N.E. 750, paragraph one of the syllabus. In Allison, the court's rationale for allowing a suit by the mortgagee was the equit......
  • Request a trial to view additional results

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