Hileman v. Harter Bank & Trust Co., 37340
| Decision Date | 19 December 1962 |
| Docket Number | No. 37340,37340 |
| Citation | 186 N.E.2d 853,174 Ohio St. 95 |
| Court | Ohio Supreme Court |
| Parties | , 21 O.O.2d 358 HILEMAN, Appellee, v. The HARTER BANK & TRUST CO., Appellant. |
Syllabus by the Court.
1. A clause in a chattel mortgage providing that upon default the mortgagee may without legal process break into any premises where the mortgaged chattel may be found and take possession thereof is contrary to public policy and therefore void.
2. Where a mortgagor brings an action in trespass against a mortgagee for breaking into his dwelling to repossess a mortgaged chattel, a clause in the mortgage purporting to authorize the mortgagee so to do is not a defense.
This action for damages for trespass was brought by a mortgagor, Carl Hileman, Sr., against the mortgagee's successor in interest, The Harter Bank & Trust Company, for the latter's acts in removing a screen and entering a window in Hileman's dwelling for the purpose of removing a mortgaged washer. Hileman was in default. The mortgage contained a repossession clause which provided that the mortgagee might break and enter any premises where the mortgaged chattel might be found and take possession of it.
At the close of Hileman's opening statement to the jury, the Common Pleas Court directed a verdict for the bank.
The Court of Appeals reversed the judgment and remanded the cause for trial. That Court held invalid as being against public policy the clause in the mortgage giving the mortgagee authority to 'make use of such force as may be necessary to enter upon, with or without breaking into any premises where the chattel(s) may be found.' It held, however, that that clause was separable from the rest of the mortgage.
This cause is before this court on the allowance of a motion to certify the record.
Black, McCuskey, Souers & Arbaugh, Dan M. Belden and Gene Barnhart, Canton, for appellant.
Robert j. Swan and Aurel Solomon, Canton, for appellee.
The question in this case is whether a mortgagor can, by signing a purchasemoney mortgage containing a repossession clause to that effect, legally consent that the mortgagee, or his successor in interest, upon default by the mortgagor may, with or without legal process, make use of such force as may be necessary, with or without breaking and entering, to enter upon any premises where a mortgaged chattel may be found and take possession thereof, or whether such clause is against public policy and void.
The dearth of direct authority on this question in Ohio suggests that such a right is seldom asserted. It appears that in other states the precise question has rarely arisen, and that there is some divergence of views.
The following was the case presented in the Common Pleas Court:
Hileman purchased a washer from the Maytag Rice Company and, to secure a portion of the purchase price, executed and delivered to the company a negotiable promissory note, payable in installments, and a chattel mortgage on the washer.
The...
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