FORECLOSURE OF MORTGAGE.

[Clermont Circuit Court,

April Term, 1898.]

Cox, Smith and Swing, JJ.

#### Carrie McHenry v. Batavia Building and Loan Co.

1. No Personal Judgment Unless Personal Liability.

In an action brought to loreclose a mortgage, there can be no personal judgment against the mortgagor for the amount of the debt secured by the mortgage, or any part thereof, unless the mortgagor is personally liable for such debt or for some part of it. If a person executes a mortgage to secure a debt for which he has not made himself liable, the mortgagee, so far as the mortgagor is concerned, can look only to the property so mortgaged.

2. But Presumption of Personal Liability Arises where Plead, and not Answered.

But where a petition alleges that a balance is due, and asks a judgment therefor, and a foreclosure, and default is made, and the court finds the amount due, and orders its payment, if the debt is not paid by the sale of the land, the court is authorized to order the defendant to pay the balance and award execution therefor.

Error to the Court of Common Pleas of Clermont county.

Smith, J.

The claim of the plaintiff in error is, that the court of common pleas erred in entering judgment against her for $475.42, the balance found to be due to plaintiff on a mortgage executed to it by said Carrie McHenry, after the sale of the mortgaged premises by order of the court, and the crediting on the amount due on said mortgage, the part of the purchase money applicable thereto, and in awarding execution against her for said balance.

The petition in the case averred among other things, that Carrie McHenry, one of the defendants, was a member of said company and the owner of four shares of its capital stock, and that on May 16. 1895, the company advanced to her $1,480, the estimated value of said 3^ shares of its capital stock as a loan. And that in order to secure the payment of said sum, said defendant, with her husband, executed to the plaintiff a mortgage on certain real estate, (describing it) which was duly recorded. That said mortgage was conditioned to be void, if the said Carrie McHenry should pay as therein provided until the payments therein provided to be made by her, should amount to $400 on each share so borrowed. That she failed to comply with these stipulations, and that there was a balance due the company of $1,408.76. “Wherefore plaintiff prays that the equity of redemption of the said defendant in said premises may be foreclosed; that an account be taken, and that it may have judgment for the amount found due on its said cause of action; that said premises may be sold free of all claims of the defendants herein; and that the proceeds of said sale may be applied to the payment of the amount due plaintiff, and for such other and further relief as is proper.”

‘ No answer was filed to this petition, and at the trial, January 31, 1898, an entry was made, showing that the same came on for hearing on the petition and the evidence, and the court found that the defendants were in default, and that the allegations of the petitioner are confessed to be true, and that therefore defendants have failed to pay plaintiff, as *532set forth' in the petition, and that there was then due plaintiff thereon $1,426.70, and it was ordered that unless defendants should pay said amount, and the costs, the property should be sold.

*H. J.*Nichols, for plaintiff in error.

*L. J. Walker,*for defendant in error.

On the twenty-fifth of April, 1898, a final decree was entered in the case, confirming the sale of the real estate, and ordering the distribution of the purchase money, $1,168.65, as follows : First: To the treasurer of the county, the taxes and penalty on the property, $80.49. Second : The costs in the case, $71.23. Third : The court found the amount due on the mortgage up to that date to be $1,492.35, and ordered the sheriff to pay the balance in his hands, $1,016.93 to the plaintiff as a credit on its claim, and that there still was due to the plaintiff $475.42, which it was adjudged by the court that it recover from the defendant, Carrie McHenry, and that execution be awarded therefor.

We have no question, but that in an action brought to foreclose a mortgage, there can be no personal judgment rendered against the mortgagor for the amount of the debt secured by the mortgage, or any part thereof, unless the mortgagor is personally liable for such debt or for some part of it. If a person executes a mortgage to secure a debt for which he has not made himself liable, the mortgagee, so far as the mortgagor is concerned, can look only to the property so mortgaged.

But we are of the opinion, that on the allegations of the petition in this case, and the judgments or decrees of the court, this rule has no application to this case. The petition expressly avers that the plaintiff in error, Carrie McHenry was a member of the company, and owner of four shares of its capital stock, and that on May 16, 1895, the company advanced to her $1,480, the estimated value of her stock, as a loan, to be repaid in a certain way and manner stated therein, which. she had failed to do, and that there was a balance due from her of $1,405.76, for which a judgment was asked and a forclosure of the mortgage.

Default having been made, the case was heard on the petition and evidence, What evidence was submitted was not shown, but the court found the amount due on the plaintiff’s claim to be $1,426.70. The presumption would be, that the evidence fully supported the claim of plaintiff that the amount received by the defendant was received as a loan to be repaid as stated on the petition.

The debt not being paid by the sale-of the laud, we think, the court was authorized to make the order it did, finding the balance due from the plaintiff in error, and awarding execution therefor. The judgment will be affirmed, with costs, but without penalty.