PROCEEDINGS FOR REDEMPTION OF REAL ESTATE.

Court of Appeals for Wood County.

#### Jessie M. Shank v. Darwin B. Beers et al.

Decided, February 5, 1914.

*Appeal*— Right *of, in an Action to Redeem Property Sold Under Foreclosure■*— Nature *of Such an Action.*

Where the primary relief sought is the setting aside of a decree and the cancellation of conveyances, and as an incident thereof, the recovery of real estate, the action is one which is appealable.

*A. G. Fuller,*for plaintiff.

*Kelly & Kill,*contra.

Richards, J.

Heard on motion to dismiss appeal.

The action was brought in the court of common pleas for the purpose of procuring the cancellation of a mortgage and redeeming certain real estate which had been sold under foreclosure proceedings in the Common Pleas Court of Wood County. The trial in that court resulted in a finding and decree in favor of the defendants, from which the plaintiff appealed to this court.

It appears from the pleadings in the case that the plaintiff and her husband executed to Darwin B. Beers, in the year 1895, a note in the sum of nine hundred dollars, payable five years after date, with interest, and that to secure the same they executed a mortgage on the real estate in controversy in this action. It appears that Beers brought an action in foreclosure, and that in the case such proceedings were had that a decree was entered in his favor, and thereafter the property was sold and a deed executed by the sheriff to the purchaser, and that from this purchaser, by sundry mesne conveyances, the legal title has *265passed to and is now vested in the defendant, Libbie Henning, who is in possession of the premises.

In the petition in the present action Darwin B. Beers is named as a defendant, and a personal judgment is asked against him for the amount which the rents and profits exceed the amount which would be due on the promissory note already mentioned; but no summons was served on Beers, although repeated attempts were made to procure service, and he did not enter his appearance in the action, and no order or judgment was made in the common pleas court against him. So far as the other defendants are concerned, the plaintiff asks in her petition that the decree, and-all conveyances and mortgages under which the defendants hold possession may be adjudged to be of no effect as against plaintiff’s title, and that she may be restored to possession and enjoyment of the premises and her title quieted, and for such further relief as she may be entitled to in the matter.

We think the action is clearly one in which the plaintiff, on being defeated in the common pleas court, is entitled to appeal to this court. It is said in argument that the action is one for the recovery of real estate, or ejectment, and in which the parties would be entitled to a trial by jury, but to that argument we can not accede. The primary relief sought is to set aside the orders and decrees of the trial court in the original foreclosure action and the subsequent conveyances of the real estate based on such judgment and order of sale in that case.

Of course, if the plaintiff should prevail, it would probably result in her recovering the real estate, but that would be only an incident to the main relief sought. Clearly an action to recover real estate, or, as it was called under the old law, ejectment, would not lie, for such an action could not be maintained until the plaintiff had gotten rid of the muniments of title now held by the defendant, Libbie Henning.

The case is quite similar to the one under consideration by the Supreme Court in *Tierce, Assignee,*v. *Stewart,*61 O. S., 422. I quote from the opinion of the court on page 424: *266
      *{*

> *265“Before any money judgment can be rendered, the court must examine and weigh the equities of the case, and exercise *266its sound judicial discretion. * * * Tbe equitable considerations and exercise of sound judicial discretion are the body and substance of such action, and a judgment for money or other relief in any particular case, is only an incident flowing from tbe determination of the body of tbe case.”

I quote also from *Willson Improvement Co.*v. *Malone,*78 O. S., 240:

> “It does not,.however, extend tbe right of trial by jury to eases calling for any form of relief peculiar to courts of equity. When tbe action is for tbe recovery of money, and no equitable relief is sought, it is an action for money only. ’ ’

In Jones on Mortgages, Volume 2, Section 1093, tbe true rule applicable to such eases is very well stated in tbe following language :

> ‘ ‘ Tbe only remedy of the mortgagor for enforcing bis right to redeem, after a breach of tbe condition, is by a bill in equity. If tbe mortgagee is in possession be has tbe right to retain the possession until bis claim upon tbe property is paid. So long as tbe mortgage is in fact not discharged, and is apparently a subsisting security, tbe mortgagor can not obtain possession by ejectment. The rule is tbe same, although tbe mortgagor claims that tbe debt has been paid in full. So long as tbe mortgage is apparently unsatisfied, and the mortgagee claims any interest under it, tbe mortgagor must resort to a suit in equity to redeem; and although be may allege that the mortgage has been paid or was given for tbe accommodation of tbe mortgagee, and may pray that a decree be entered that it be discharged, yet be should at tbe same time pray that be be allowed to redeem, and should offer to do so, if anything be found due upon tbe mortgage. ’ ’

We think, therefore, that the motion to dismiss tbe appeal should be overruled, andi such will be tbe order.

Kinkade, J., and Chittenden, J., concur.