For the appellant, there was a brief by William O. Wilson, Attorney General, James A. Greenwood, Deputy Attorney General, and Richard J. Jackson, Assistant Attorney general, and an oral argument by Mr. Jackson. The transactions between Shad, Cashier of Shoshoni State Bank of Shoshoni, and Lander State Bank, were on the face thereof ultra vires. Bank v. Shawnee Bank, 95 U.S. 557; State Bank v. Natl. Bank, 66 Fed. 691; Natl. Bank v. Armstrong, 152 U.S. 346; Swofford Bros. v. Bank, 81 Mo. App. 46; Bank v. Oskamp, 59 So. 566; Bank v. Savings Bank, 149 S.W. 495; 1 Morse Bks. and Bkng. (6th Ed.) 472; 5148 C.S. The evidence is insufficient to sustain the judgment. Lander State Bank v. Nottingham, 37 Wyo. 50; Bank v. Lyons, Rec'r., 220 Mo. 538; Bank v. Natl. Bank, 229 P. 258; Bank v. Bank, 109 Fed. 421; Aldrich v. Bank, 176 U.S. 618; Farmers Bank v. Bluefield Bank, 11 F.2d 83. The trial court erred in admitting evidence of prior transactions.
At least eight Ohio courts have considered the merger doctrine under circumstances similar to Bell, that is, where a mortgagor conveyed the mortgaged property to a senior mortgagee. Senter v. Senter (1913), 87 Ohio St. 377, 101 N.E. 272; BancOhio Natl. Bank v. Sargent (Mar. 10, 1986), Scioto App. No. 1544, unreported, 1986 WL 2996; Waitman v. Emmons (1945), 76 Ohio App. 212, 31 O.O. 502, 61 N.E.2d 912; Marshall v. Ebling (1942), 70 Ohio App. 145, 24 O.O. 477, 45 N.E.2d 318; People's State Bank of Wauseon v. First Natl. Bank of Napoleon (1931), 40 Ohio App. 374, 178 N.E. 702; Eythe v. Commercial Bank Sav. Co. (1930), 40 Ohio App. 150, 178 N.E. 425; Case v. Golnar (1928), 33 Ohio App. 389, 169 N.E. 724; Giovannoni v. Corryville Bldg. Sav. Co. (C.P. 1938), 26 Ohio Law Abs. 351. In only one case has a court applied the merger doctrine to hold that the owner's lesser interest as mortgagee merged with her superior interest as legal titleholder to the property.
"Even though the mortgage has been discharged, the lien of the mortgage may be restored, under some circumstances." Many cases may be cited in support of the stated rule, among them being: Bell v. Tenny, 29 Ohio St. 240; Myers v. Hewitt, 16 Ohio, 449; Corwin v. Collett's Exrs., 16 Ohio St. 289; Case v. Golnar, 33 Ohio App. 389, 169 N.E. 724; Eythe v. Commercial Bank Savings Co., 40 Ohio App. 150, 178 N.E. 425; Peoples State Bank of Wauseon v. First Natl. Bank of Napoleon, 40 Ohio App. 374, 178 N.E. 702. See, also, 19 Ruling Case Law, 489, 490, Sections 282, 283, 284; 129 A.L.R., annotations at page 1435; 3 Pomeroy's Equity Jurisprudence (5 Ed.), 153, 156, 158, Sections 791, 792, 793; Bispham's Principles of Equity (10 Ed.), 275, Section 161; McCraney v. Morris, 170 S.C. 250, 170 S.E. 276, 95 A.L.R., 622, and annotations at page 628.
The principles governing actions of this kind have been frequently enunciated, as is shown by the following authorities: Stewart v. Johnson, 30 Ohio St. 24; Holliger v. Bates, 43 Ohio St. 437, 2 N.E. 841; Childs v. Childs, 10 Ohio St. 339, 75 Am. Dec., 512; Quinn Plumbing Co., Inc., v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690, 73 A.L.R., 600, and annotations. In some of its aspects the case at bar is similar to Eythe v. Commercial Bank Savings Co., 40 Ohio App. 150, 178 N.E. 425, and Peoples State Bank of Wauseon v. First National Bank of Napoleon, 40 Ohio App. 374, 178 N.E. 702. Finding no prejudicial error, the judgment is affirmed.