Maus v. Auglaize National Bank

• Decision Date: 16 March 1932
• Docket Number: 22594
• Citation: Maus v. Auglaize National Bank, 125 Ohio St. 32, 180 N.E. 378 (Ohio 1932)
• Parties: Maus v. The Auglaize National Bank Of Wapakoneta.
• Court: Ohio Supreme Court

180 N.E. 378

125 Ohio St. 32

Maus v. The Auglaize National Bank Of Wapakoneta.

No. 22594

Supreme Court of Ohio

March 16, 1932

Mortgages - Foreclosure and deficiency judgment - Evidence sustained finding that property owned and that mortgage assumed - Error proceedings - Evidence not weighed by Supreme Court - But record examined to determine whether any evidence supported judgment.

This is a proceeding to reverse the Court of Appeals of Auglaize county. The record discloses that in August, 1926, C. R Baechler was the owner of a 166-acre farm which was incumbered by two mortgages. The first mortgage, in the sum of $8,000, was held by the Virginian Joint-Stock Land Panic and the second mortgage, in the sum of $4,000, was owned and held by the Auglaize National Bank of Wapakoneta, Ohio defendant in error. On August 18, 1926, C. R. Baechler and H P. Maus, plaintiff in error, entered into an agreement, as follows:

"C R. Baechler has this day sold to H. P. Maus, one hundred and sixty-six (166) acres of land located in Auglaize county, Ohio, near the village of Geyer, for a more particular description of which reference is hereby made to a deed for the same executed by said C. R. Baechler and wife to Ohio Music Corporation. By the provisions of said deed grantee is to assume mortgage indebtedness in the sum of $12,000.00

The parties hereto have mutually agreed to the sale of said land and that the deed shall be held by W. R. Mumaugh until such time as said H. P. Mans shall turn over to said W. R. Mumaugh the consideration to be paid by said H. P. Maus for said land, which consideration is seventy-five (75) shares of the preferred stock of The Page Organ Company, said certificates divided as follows: One of fifty (50) shares, one of twenty (20) shares and five (5) of one (1) share each.

"Said Maus agrees to accept said deed and deliver in payment therefor said stock, and it is mutually understood and agreed that he shall deliver said stock and take up said deed within fifteen days from the date hereof. Or as soon as exchange of stock can be procured from The Page Organ Co.

"In witness whereof the parties hereto have hereunto set their hands this 18th day of August, 1926.

"[Signed] C. R. Baechler

"[Signed] H. P. Maus

"H.P. Maus agrees to procure stock as quickly as possible and deliver same at once.

"[Signed] H. P. Maus."

The Virginian Joint-Stock Land Bank, the first mortgagee on the premises in question, filed a foreclosure suit in the common pleas court of Auglaize county against H. P. Mans, Ohio Music Corporation, C. R. Baechler, Agnes Baechler, The Auglaize National Bank of Wapakoneta, Ohio, and others. The Auglaize National Bank filed an answer and cross-petition in said foreclosure proceeding, alleging that H. P. Maus was in fact the owner of said premise, and that the Ohio Music Corporation held title as trustee for said H. P. Maus; that Maus assumed and agreed to pay the notes and mortgages set out in the first and second causes of action; that there remains due and unpaid on the second mortgage the sum of $2,955, with interest from December 1, 1928; that by reason thereof H. P. Maus became primarily liable to said Auglaize National Bank for said unpaid balance of said mortgage.

Thereafter the case came on to be tried upon said answer and cross-petition, a jury being waived by counsel of the parties, and was submitted to the court upon the evidence.

The common pleas court found that H. P. Maus was in fact the owner of the premises in question and...