Kerr v. Lydecker

• Decision Date: 24 April 1894
• Citation: 37 N.E. 267,51 Ohio St. 240
• Parties: KERR et al. v. LYDECKER.
• Court: Ohio Supreme Court

37 N.E. 267

51 Ohio St. 240

KERR et al. v. LYDECKER.

Supreme Court of Ohio.

April 24, 1894

Error to circuit court, Gallia county.

This action was originally commenced on the 28th day of February 1889, by Richard J. Morrison, then the administrator of the estate of Ellis H. Elias, deceased, and afterwards Charles E Lydecker became the administrator, and was substituted in the place of Mr. Morrison. The petition in the court of common pleas is as follows: ‘ The plaintiff says that on the 28th day of January, A. D. 1885, he was, by the surrogate court of New York City, county of New York, and state of New York, duly appointed administrator of the estate of Ellis H Elias, deceased; that he gave bond as such administrator, and was duly qualified and entered upon the discharge of the duties of his said office, and is now the duly acting and sole administrator of said estate; that Ellis H. Elias died intestate, and was, at the time of his death, a resident of the city of New York, county of New York, and state of New York, and that said surrogate court of New York City, at the time of the appointment of said administrator, had jurisdiction both of the subject-matter and the person. The plaintiff says, further, that on or about the 2d day of March, A. D. 1868, in the county of Gallia, Ohio, one Thomas Hill, then in full life, but since deceased, was then and there the owner in fee simple and in possession of certain real estate in the said Gallia county, Ohio, to wit, the southeast half of city lot in the city of Gallipolis, Gallia county, Ohio, numbered fifty-four (54) on the original plat of said town of Gallipolis; that the said Thomas Hill did, on the 2d day of March, A. D. 1868, by his deed of that date duly executed and delivered, convey in fee simple to the said Ellis H. Elias, plaintiff's intestate, then in full life but since deceased, his heirs and assigns, forever, the lands and tenements aforesaid, to wit, the southeast half of city lot numbered fifty four (54) in the city of Gallipolis Gallia county, Ohio, on the original plat thereof, which said deed of mortgage was on the 18th day of February, A. D. 1869, at the hour of 10 o'clock a. m., duly left for record in the recorder's office of said county of Gallia, Ohio, and was duly recorded in book 5, at pages 509 and 510, Record of Mortgages of said county of Gallia. The plaintiff further says that the said deed of mortgage had a condition thereunder written, providing that if the said Thomas Hill should pay, or cause to be paid, his certain promissory note of said date, to wit, March 2, 1868, for the sum of $1,000 (one thousand dollars), due one year after date, to wit, March 2, 1869, then that the said deed of conveyance should be of no effect, but otherwise it was to be and continue in full force and virtue in law. And the said plaintiff further says that the said Thomas Hill did not pay the said sum of one thousand dollars, nor any part thereof, at the time it became due, nor at any time, nor has he or any one else, since, or at any time, paid said sum, or any part thereof, to plaintiff's intestate, the said Ellis H. Elias, nor to the plaintiff, nor to any one for him or said intestate; wherefore said deed has become absolute. The plaintiff further says that the said Thomas Hill departed this life on or about the ___ day of _____, 1875; that prior to his death he conveyed said real estate, and that the defendant Mary J. Martin is now in possession of said real estate, claiming title under the said Thomas Hill, deceased, but that said claim is subsequent to, and inferior to, the claim of this plaintiff; that the defendants James M. Kerr and August Ufferman have some claim or interest in said premises by virtue of certain mortgage deeds from the defendant Mary J. Martin, but this plaintiff says that all of said claims of said defendants are subsequent to and inferior to the claim of this plaintiff; wherefore plaintiff prays that an accounting may be had of the amount due him, to wit, $1,000, with interest from the 2d day of March, A. D. 1869; that the court find and decree that plaintiff's claim is prior to, and superior to, that of all of said defendants, and that in default of payment of the amount so found due, within a short time to be named by the court, that the said real estate herein described may be adjudged to be appraised, advertised, and sold, and the money arising therefrom be first applied to the payment of said sum of $1,000, with interest as found due this plaintiff.’ To this petition, defendants below filed the following demurrer, omitting the caption, here: ‘ Defendants demur to the petition of plaintiff for the following reasons: First, that the plaintiff has not legal capacity to sue; second, that there is a defect of parties defendant; third, that the petition does not state facts sufficient to constitute a cause of action.’ This demurrer was overruled, and an answer filed, pleading the statute of limitations, and averring that the action was not brought within 15 years after the cause of action accrued. A demurrer to this answer was filed by plaintiff below, and in the circuit court the demurrer to the petition was overruled, and the demurrer to the answer was sustained, to all of which proper exceptions were taken.

The case was tried in the circuit court upon the issues tendered by other parts of the answer, and a finding of facts made separate from the conclusions of law, which finding of facts and conclusions of law are as follows: ‘ First, that on March 2, 1868, Thomas Hill, then in full life, but since deceased, was the owner of the premises described in the petition in fee simple; that on said date the said Thomas Hill executed and delivered to Ellis H. Elias, plaintiff's intestate, the mortgage deed referred to in the petition, whereby he conveyed to Ellis H. Elias, his heirs and assigns, forever, the premises so in the petition described; that said mortgage had a condition thereunder written; that said mortgage was executed and delivered to secure the payment of a certain promissory note made by said mortgagor at the date of said mortgage, payable to the order of said plaintiff's intestate, for the sum of $1,000, due and payable one year after date, to wit, on the 5th day of March, 1869; that said mortgage was duly recorded in the records of mortgages of said Gallia county, where said premises were situate, on the 18th day of February, 1869, and became a lien of the said premises described therein and in said petition; that said note and mortgage were made and executed for the full and bona fide indebtedness of $1,000, payable by said Thomas Hill to plaintiff's intestate, according to the tenor and effect of said promissory note referred to in the condition of said mortgage; that the said indebtedness so referred to in the condition of said mortgage has never been paid or discharged, and said mortgage has never been released, but still stands as an existing and unsatisfied mortgage deed, and that the defendants now own and hold title fee to said premises from said Thomas Hill, the mortgagor, subject to whatever rights the plaintiff, as the representative of the deceased mortgagee, has therein by reason of said unsatisfied mortgage; that the said Charles E. Lydecker is the duly appointed and acting administrator de bonis non of said estate, and has been duly made party plaintiff herein in place and stead of Richard J. Morrison; that the amount named in the condition of said mortgage as the sum to be secured thereby, including interest, the court finds to be, on the first day of this term of this court, to wit, February 25, 1891, the sum of $2,319.00. The court, upon the facts so as aforesaid found, finds, as matters of law, that the plaintiff has the right to maintain his said action, and is entitled to the relief prayed for, and in his petition demanded, to wit, to a judgment ordering the sale of said premises in the petition described for the payment of the amount so found due on the sum named in the condition of said mortgage deed. It is therefore ordered and adjudged that, unless the said defendants pay the sum to be paid in ten days, an order of sale issue to the sheriff of this county, commanding him to cause the land and tenements in the petition described to be appraised, advertised, and sold according to law, and that he bring the proceeds of such sale into court at the next term of this court, to which time this case is continued. To which finding and conclusions of law as herein found and set forth, and to the judgment and order of the court in ordering a sale of said premises, the said defendants then and there excepted, and said exceptions were made a part of the record.’ Judgment having been rendered in favor of the plaintiff below, the case is brought here by plaintiffs in error (defendants below) to reverse the judgment of the circuit court. Reversed.

Syllabus by the Court

A mortgage is a specialty, and an action for its foreclosure and sale of the premises comes within the provisions of section 4980, Rev. St., and the period of limitation is 15 years, unless extended by virtue of section 4992, Id.

A. L. Greene, for plaintiffs in error.

A. L. Roadarmour, for defendant in error.

BURKET, J. (after stating the facts).

The principal error relied upon is that the circuit court erred in sustaining the demurrer to so much of the answer as pleads the 15-years statute of limitations, and in overruling the demurrer to the petition. The first and second causes of demurrer were not well taken, and were properly overruled. A court in this state cannot take judicial notice of the laws or courts of another state. If there is no such court as the surrogate court of New York City, having jurisdiction of probate matters, such fact...