Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1867-04-10
Supreme Court of Ohio.
TUESDAY, March 26, 1867
GENERAL DOCKET


Supreme Court of Ohio.
TUESDAY, March &c, 1867.
GENERAL DOCKET.
ScoTT J. The holder of promissory
note executed a mortgage upon real
estate to secure its payment. In pur-
suance of an order made in a proceed.
ing in equity thereafter instituted by
creditors of the mortgage or for the
purpose of marshallirg liens, the mort
gagged premises were sold the purcha-
ser was the holder of the note and
mortgage, and the proceeds of the sale
were applied upon his claim. At the
time of the sale, the purchaser had
knowledge of prior lien upon the
premises, held by one who had not
been made party to the proceeding ;
but believed such prior lien would not
effect his title. The prior lien holder
again brought the premises to a judicial
sale for the satisfaction of his claim,
and the holder of the note again be-
came the purchaser in order to prose-
cute his title and interest in the prem
ises. In an action at law subsequently,
brought upon the note by the holder
against the maker. Held -
l. That the defendant was entitled
to be credited with the proceeds of the
first sale, without any deduction there
from on account of the loss which the
plaintiff had sustained By reason of the
prior membranes.
2. A plaintiff can recover only on the
causes of action stated in his petition.
1t is not in the province of a reply to
can only be done by amendment of the
petition.
Judgement Of Common Pleas reTers-
ed, demurrer to reply sustained, and
cause remanded.
BRINKERHoFP, J. Held:
Where one of two proprietors re-
speciiVely of adjoining lands hold act
ual, continuous, notorious and exclu-
sive possession up to certain time,
though not originally the true one, for
the full period of twenty-one years,
the statute of limitations applies in his
favor and against the adjoining propri-
etor, although such possession may
have grown out of the mutual mistake
Of the parties respectively in respect to
the locality of what was the true line
between them.v
Judgement reversed and cause re-
manded.
WEIGH ]. Held:
Where bill in chsncery alleges that |
The defendant gave his consent to an
ret. of the plaintiff, and the answer
1oes not deny the allegation but the
ross bill charges, that the act in ques
ion was done without the defendants
and the answer to the cross
,ill does not deny the charge.-HeId
That the fact of consent is not admit
ed by the pleadings.
2. Where the owner of a mortgage
lebt assigns it to a third person, guar
its payment, and takes from
he assignee a note for part of the
mount of the debt, payable when the
lebt is collected, the assignee may be
egarded as having an interest in the
mortgage, similar to that of junior
1ortgagee.
8. A binding contract between such
ssignee and the mortgagor, TO extend
be time for payment of the mortgage
ebt, discharges the assignee from his t
I
4. Such assignee taking from the 8
iortgagor a deed for part of the mort 5
age property, at less than its full val /
e, in part payment of the mortgage I
ebt, is liable to account to the assignee I
'r its full value, if necessary to the
ayment of the mortgage. q
3. Where the assignee in such a case '
aused an execution, issued upon a 9
ldgement obtained for part of the e
ebt, to be levied upon certain part G
the mortgage property, and himself y
ecame the purchaser Hereunder, he
cquires only the equity of redemption i
! the property sold. e
g. But where the purchase money I
rising from such sale, and applied in
ayment of the mortgage, with inter b
II thereon, will first be refunded to b
i'm out Of the proceeds of the sale of t
le premises under the mortgage. I
Decree accordingly, and cause re- .
and. p
Day, J.C. Held: 8
Where On agent drew post dated P
egotiable check on a bank, and signed Il
with his own name, adding thereto, q
Ie word Agent" but without indi-
ting thereon the name Of his princi- e.
i, and the party to whom such check n
as delivered negotiated it to third b
,rson for valubie consideration be- a:
re the day of its date, held: That the CT
incipal is not bound by the check, Il
id the holder cannot maintain an &C al
on thereon against him, W
Judgement thereon affirmed. u
WHITE, j.
An action was brought on a contract
which the defendant agreed to make
lease for the term o. ten years to the b
aintiff of fcertain lands for the plant al
g and cultivation of peach orchard. cl
le breach consisted in the failing of cl
e defendant to make the lease, aud in Ia
) causing the plaintiff. within two II
ars from his taking possession, TO be of
icted from the premises, but after bl
e peach trees were planted. On the W
al, the plaintiff was permitted to give eC
idence of the profitable profits that W
ght in future be realized from or gr
ard, judging by the number of crops Il
d the prices of peaches in the coun- fu
for the last ten of fifteen years be
sld- kr
|. That the evidence as to the prob su
Ie future profits was incompetent to bl
given In chief by the plaintiff "a Sc
basis for the assessment Of til
images by the jury: Such evidence ab
ing uncertain and speculative in its
ture and in great degree conject- ra
Il. W
}. To the extent that the damages We
pended on the loss of the use of the ha
,perty for the term, its market val of
the time Of the eviction subject 10
, performance of the contract on the ly
It of the plaintiff, furnished the crC
ndard for assessing damages. If it $st
1 no general market value, its value If
,uld be ascertained from witnesses Us
ose experience and skill enabled IN