Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-03-28

1888 -' TUESDAY, March 26, 1867
Hon. Luther Day, Chief Justice !; Hon. William
= White. Hon. John W elch, Hon. Jacob Brinker-
hoff,. and Hon Josiah Scott, Judges. y =
~ b. J. Critchfeld, ESQ.,, Reporter. ''' 5az
GENERAL DOCKET. .-rH .i.j. +
q No. So. James Durbin Y. Buel G. Fisk. Error to
the CS9 m & Gf atrc Gsns of Henry county Re
SooTT, J. The maker of promissory note exc
cuted mortgage upon real estate to secure Its pay
ing in equity thereafter instituted by of the
mortgage, or for the purpose of marshalint liens,
the mortgaged premises were sold: the purchaser
was the holder of the note and mortgage and the
proceeds of sale were applied upon, his claim At
of prior lien upon the premises. held by one who
had not been made party to the proce ding but
The prior ienholder subsequently, brought the
premises again to Judicial sale for the satisfaction
came the purchaser in order to protect his title and
interest in the premises In an action at law subse
guenty brought upon the note by the holder against
1. That the defendant was entitled to be credited
with the proceeds of the first sale, without de-
duction therefrom on account of the loss which the
plaintiff had sustained by reason of the prior incum-
2. plaintiff can recover only onlthe causes of ac-
ton stated in his petition 1t is not the province of
be done only BY amendment of the pc tition. u -
Judgment of Common Pleas reversed, demurrer
Eo epiG 1Co JoRn Yet2er Philip TSoman. Error
to the Common Pleas of Crawford county. Reserved
in the District Court -s-tii I'D
BRINKERHoFF j. Held: :rt- -.'
Where one of two proprietors respectively of ad-
Joining lands holds actual e0ntnnai' notorious and
originally the true for the full perlo OF twenty
one years the 81 sp eS IN ns
such possession may have grown out OF the mutual
mistake OF the parties t IN reSpcSs to sae
them. a- -.'2sr x -- !.r t...f..' 80 p
No 7. Milton Fithiaa ". Ohm A. Corwen ct al.
Appeal! reserved in the District Court OF Logan
county. - .-'.t -7 .'.
WETC III /
z l. Where bill in chancery alleges that the de-
fendant gave his consent to an act OF the plaintiff.
cross bill charges that the act in question was done
without the defendants consent, and the s9sWer to
the cross bill does not deny the charge. Held That
the fact of consent is not admitted oy the plea1
ings.
to a third person, guaranteeing its payment, and
takes from the assignee note for part OF the amount
of the debt payable when the debt is collected the
assignor may be regarded as having interest in
the mortgage, similar to that of junior mortsagee
A binding contract between such assignee and
the mortgagor, to extend the time for payment OF
the mortgage debt discharges the assignee from his
T. Such assignee taking from the mortgagor deed
for part of the mortgage prog erty, at less t1ap It's
liable to account to the assignee for Its ful value, II
necessaryto the payment of the mortgage.
execution, issued upon Judgment Obtai6d for part
of the debt, to elevied upon part of the morgage
property, and himself became the purchaser tnere-
urder he acquired only the equity OF redempuon
in the property sold.
and applied in payment of the mortgaSe, with inter
est thereon will first be refunded to him out OF the
proceeds of the sale of the premises under the mort
gage. '- '''-''-' -
Decree accordinslysa and cause remanded; w
No. 65. Miriam II. Andorton ct al. Y. Geo. w
Shoup, trustee. Error to the Superior Court Oh
MONTGOMERY county.
DAY. Q. j.. Held: GG,s.G. .i.-, sc
81, Where an agent drew a poet dated negotiable
cheek bank and signed i With his oWp name me-
deatiDg thereon the name of his principal, and the
party to whom such check was delivered negotlaEed
II to third person for valuable conslderatlon Pc
fore the day of its date held That the Is
not bound by the check, and the holder cannot
maintain an action thereon against hlm. , . ~, ~.
Judgment affirmed CfJC ,-9l. A. = -,
No. 12. Joseph d. Rhodes " Bedant Baird. Err
ror to the Court of Common Pleas of Warren county
reserved in the District Court = q &
WHITE, j.:
An action was brought on contract by which the
defendant agreed to make lease for the term OF ten
years to the plaintiff of certain lands for the plant
ing and cultivation of peach orchard. The breach
consisted in the failure of the defendant to make
the lease, and in his causing the plalntn, within
two years from his taking possession to be elected
from the premises; but after the peaen trees were
planted. On the trial, the plaintiff was permitted
to give evidence of the probable profits that might