Opinion
No. 22894
Decided March 16, 1932.
Mortgages — Foreclosure and deficiency judgment — Evidence sustained finding that property owned and that mortgage assumed — Error proceedings — Evidence not weighed by Supreme Court — But record examined to determine whether any evidence supported judgment.
ERROR to the Court of Appeals of Auglaize county.
This is a proceeding to reverse the Court of Appeals of Auglaize county. The record discloses that in August, 1926, C.R. Baechler was the owner of a 166-acre farm which was incumbered by two mortgages. The first mortgage, in the sum of $8,000, was held by the Virginian Joint-Stock Land Bank, and the second mortgage, in the sum of $4,000, was owned and held by the Auglaize National Bank of Wapakoneta, Ohio, defendant in error. On August 18, 1926, C.R. Baechler and H.P. Maus, plaintiff in error, entered into an agreement, as follows:
"C.R. Baechler has this day sold to H.P. Maus, one hundred and sixty-six (166) acres of land located in Auglaize county, Ohio, near the village of Geyer, for a more particular description of which reference is hereby made to a deed for the same executed by said C.R. Baechler and wife to Ohio Music Corporation. By the provisions of said deed grantee is to assume mortgage indebtedness in the sum of $12,000.00.
"The parties hereto have mutually agreed to the sale of said land and that the deed shall be held by W.R. Mumaugh until such time as said H.P. Maus shall turn over to said W.R. Mumaugh the consideration to be paid by said H.P. Maus for said land, which consideration is seventy-five (75) shares of the preferred stock of The Page Organ Company, said certificates divided as follows: One of fifty (50) shares, one of twenty (20) shares and five (5) of one (1) share each.
"Said Maus agrees to accept said deed and deliver in payment therefor said stock, and it is mutually understood and agreed that he shall deliver said stock and take up said deed within fifteen days from the date hereof. Or as soon as exchange of stock can be procured from The Page Organ Co.
"In witness whereof the parties hereto have hereunto set their hands this 18th day of August, 1926.
"[Signed] C.R. Baechler
"[Signed] H.P. Maus
"H.P. Maus agrees to procure stock as quickly as possible and deliver same at once.
"[Signed] H.P. Maus."
The Virginian Joint-Stock Land Bank, the first mortgagee on the premises in question, filed a foreclosure suit in the common pleas court of Auglaize county against H.P. Maus, Ohio Music Corporation, C.R. Baechler, Agnes Baechler, The Auglaize National Bank of Wapakoneta, Ohio, and others. The Auglaize National Bank filed an answer and cross-petition in said foreclosure proceeding, alleging that H.P. Maus was in fact the owner of said premises and that the Ohio Music Corporation held title as trustee for said H.P. Maus; that Maus assumed and agreed to pay the notes and mortgages set out in the first and second causes of action; that there remains due and unpaid on the second mortgage the sum of $2,955, with interest from December 1, 1928; that by reason thereof H.P. Maus became primarily liable to said Auglaize National Bank for said unpaid balance of said mortgage.
Thereafter the case came on to be tried upon said answer and cross-petition, a jury being waived by counsel of the parties, and was submitted to the court upon the evidence.
The common pleas court found that H.P. Maus was in fact the owner of the premises in question and rendered a judgment in favor of the Auglaize National Bank against H.P. Maus for the sum of $3,211.10, with interest thereon at the rate of six per cent. from May 10, 1930, and for costs. Thereafter an order of sale was issued at the request of the Virginian Joint-Stock Land Bank, and the premises sold for an amount insufficient to pay the judgment of the Auglaize National Bank or any part thereof. Said judgment remains unpaid and unsatisfied, and it is this deficiency judgment that is the subject of the controversy in this lawsuit, the plaintiff in error, H.P. Maus, claiming that he is not liable on this deficiency judgment, for the reason that a certain written contract between Maus and Baechler was the only evidence of his liability upon said Auglaize National Bank mortgage and that such evidence is not sufficient to bind him in the premises.
As above indicated, the common pleas court found otherwise and rendered judgment in favor of the Auglaize National Bank.
The Court of Appeals, upon error prosecuted by Maus, reviewed the record and affirmed the judgment of the court of common pleas. Error is now prosecuted to this court to reverse such judgment.
Messrs. Meredith Meredith and Mr. Kent W. Hughes, for plaintiff in error.
Messrs. Anderson Lusk, for defendant in error.
The plaintiff in error complains of the deficiency judgment recovered against him by the Auglaize National Bank in the foreclosure proceeding, on the theory that there is no evidence in the record to support such judgment.
The question then is presented whether there is some evidence in the record to support the judgments of the courts below, this court not being authorized to weigh the evidence but authorized to examine the record to see whether there is any evidence to support the aforesaid judgment.
The written agreement heretofore set forth between Baechler and Maus reciting, as it does, "C.R. Baechler has this day sold to H.P. Maus one hundred and sixty-six (166) acres of land located in Auglaize county, Ohio, and that Maus agrees to "assume mortgage indebtedness in the sum of $12,000.00," is not the only evidence indicating ownership of Maus and his liability in the premises. The facts and circumstances surrounding the parties, the inspection of the farm by Maus and his agent, the dominance of Maus in the entire transaction, such as payment of interest on both the first and second mortgages after the delivery of the deed, the payment by Maus of the taxes on the farm, the assumption agreement with the Virginian Joint-Stock Land Bank, which specifically states that H.P. Maus "has purchased said tract or parcel of land in said mortgage more particularly bounded and described," etc., the looking after the running of the farm, the ownership of the chattels on the farm, the taking of the proceeds of said farm, his stock in the Page Organ Company transferred to Baechler as a part of the consideration for the farm and representing the payment of Baechler's equity over and above the Land Bank mortgage and the Auglaize National Bank mortgage; Baechler receiving no money, the improbability of Baechler selling his interest in his farm for the payment of the first mortgage and the seventy-five shares of the Page Organ Company stock, leaving himself liable on the Auglaize National Bank mortgage; the reluctance of Maus to admit the signing of the written agreement — these and other facts are evidence indicating the ownership of Maus, which, together with the conduct of the parties, the circumstances surrounding them, viewed from the advantage which the trial court had of observing the parties and hearing their testimony, their manner of testifying, all taken together afford some evidence which tends to support the judgment of the trial court in finding a promise of assumption of the mortgage of the Auglaize National Bank on the part of H.P. Maus.
The judgments of the court of common pleas and of the Court of Appeals are therefore affirmed.
Judgments affirmed.
MARSHALL, C.J., DAY, KINKADE, and STEPHENSON, JJ., concur.
JONES, J., not participating.