
    No. 466
    SEIFERT v. KNIRK
    Ohio Appeals, 7th Dist., Mahoning Co.
    Oct. 24, 1924.
    147. BILLS AND NOTES—Where there are two successive assignments to innocent purchasers of the same note and mortgage, the loss falls upon the first assignee, when the result was caused or made possible by his act.
    Attorneys—Moore, Barnum & Hammond, for Seifert; R. A. Beard, Ewing & Ewing, W. R. Stewart, Jos. C. Miller, L. M. Kyes, Harrington, DeFord, Hexley & Smith, for defendants.
   ROBERTS, J.

Original action in the Common Pleas seeking the foreclosure of a mechanic’s lien growing out of the building of .a house for Sophia Knirk, one of the defendants.

Among the answers and cross petitions were one by S. H. Knight, setting up two notes secured by separate mortgages on the premises of Sophia Knirk, and one by Lizzie and W. D. Galbreath, alleging that they were the owners of said two notes and two mortgages claimed by Knight.

The evidence disclosed that Sophia Knirk executed the two notes and mortgages and delivered them to one A. E. Hawk, that Hawk endorsed them all over to Knight, that Knight did not present this assignment at the court house for record, that later Hawk told Knight that Sophia Knirk desired to pay the notes and Knight thereupon delivered the notes and mortgages to Hawk. Hawk then erased the name of Knight from the separate assignments and having sold the notes and mortgages to the Galbreaths, filled in the names of the Gal-breaths. The Common Pleas found that the Galbreaths were entitled to the notes and mortgages. Knight appealed to the Court of Appeals which held:

When a loss must fall upon one of two innocent parties, he whose acts caused or made possible the loss must bear it and is responsible therefore, citing Harmon v. Philo, 2 Abs. 443, and Weisber v. Barberton Sav. Bank 84 OS. 21.

The Galbreaths are the real owners and are entitled to the notes and mortgages. Judgment affirmed.  