#### Carter, Exrx., Appellee, *v.*Holmes et al., Appellants.

(No. 907

Decided December 13, 1945.)

*Mr. George 0. Cummins,*for appellee.

*Messrs. Kaiits, Rolbroch & Bosch,*for appellants.

By the Court.

Plaintiff in her capacity as executrix recovered a judgment in foreclosure of a mortgage on real estate in which title was held by defendants as sole heirs at law of the deceased mortgagor.

The petition, in the first cause of action, set forth the note with certain credits thereon and, in the second cause of action, set forth the requisite allegations concerning the mortgage given to secure payment of the debt.- The prayer was solely for foreclosure and application of the proceeds of sale to the payments of the liens as marshaled and found due.

No prayer for personal judgment was contained in the petition. The answer was a general denial and a plea of payment.

*331Counsel for plaintiff included in Ms opening statement the following:

“■I say to the court that the plaintiff asks for judgment on foreclosure. We are not asking for a personal judgment on the note set forth in the petition, and we admit that we are not entitled to personal judgment against the defendants on the note.”

Defendants’ principal contentions are that they are entitled to judgment on the opening statement of counsel; that plaintiff is without capacity to sue, because she is not the real party in interest; and that judgment should not have beén rendered against them, because plaintiff failed to produce the note described in the petition and in the mortgage.

Reflecting on the capacity to sue, the General Code of Ohio provides:

Section 10509-68. “When a mortgagee of real estate, or an assignee of such mortgagee, dies without foreclosing the mortgage, the mortgaged premises, and the debts secured thereby, shall be considered as personal assets in the hands of his executor or administrator, and be administered and accounted for as such.”

Section 10509-71. “A mortgage belonging to the estate may be foreclosed by the executor or administrator.”

Section 11244. “An executor, administrator, or guardian, a trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized bylaw.”

From the foregoing, the capacity to sue is evident.

It is argued that because in the opening statement plaintiff disclaimed a right to personal judgment on *332the note, no right of foreclosure exists. That argument overlooks the nature and extent of the remedies the mortgagee might have.

Section 11306, General Code, provides:

“The plaintiff may unite several causes of action in the same petition, whether they are legal or equitable, or both, when they are included in any of the following classes: * * *

“9. Claims to foreclose a mortgage given to secure the payment of money or to enforce a specific lien for money, and to recover a personal judgment for the debt secured by such mortgage or lien * *

Since *Spence*v. *Union Central Life Ins. Co.,*40 Ohio St., 517, it has been held that the section is permissive, and does not require that the two remedies be demanded in the same action. Here, they could not be. Defendants never contracted the debt or signed the note and, hence, could not be held personally liable, but they did succeed to the title to the premises subject to the mortgage which is, of course, subject to being foreclosed. See 27 Ohio Jurisprudence, 592, 644, 654, Sections 383 *et seq.,*458 and 472.

With reference to the failure to produce the note, an examination of the record and exhibits discloses substantial evidence — the listing of the mortgage debt in the estate of mortgagor, for example — to justify the finding of the trial court as to the existence and amount of the debt, and this court, therefore, will not disturb that finding. Although payment is pleaded, no substantial evidence was produced to discharge the burden of proof thereof resting on defendants.

The judgment is, therefore, affirmed.

*Judgment affirmed.*

Hildebrant, P. J., Matthews and Ross, JJ., concur.