
    No. 736
    FAIRBANKS v. RIDGEWAY
    Ohio Appeals, Third District, Marion County
    No. 610.
    Decided April 11, 1923
    This opinion has not been published except in AbstracJ
    257. MORTGAGES.
    Constructio n of deed as .mortgage — Convey of property by mortgagee — Where a sale is a nullitB broker not entitled-to commission — In an accounting^ mortgagee must be allowed sum spent in investj gating mortgagor’s interest in premises.
   BY THE COURT.

Epitomized Opinion

This was an action by plaintiff to regain titlB to certain prmeises. As the defendant loaned tb§ plaintiff certain money, the plaintiff made a coi¡ veyance of certain property to the defendant security. This conveyance was in the form of deled rather than as a mortgage. During thl pendency of the action, the defendant attempts" to sell the premises. The defendant, in his answel asked for an accounting. The Court of Appeal held:

1. That the written instrument should be coi| strued as a mortgage and not as a deed.

2. That the attempted conveyance by defendaij did not divest plaintiff of his equity of redemptiof

Attorneys — J. W. McCarron, for Fairbanks; Fred L. Carhart, for Ridgeway.

3. As the attempted sale to which plaintiff was not a party was a nullity, a broker’s commission thereon did not constitute an item allowable to the defendant in an accounting.

4. That the defendant be reimbursed in the sum of $107.00 as expenses in investigating representations made by plaintiff at the time the loan was made, in accordance with the terms of the agreement.  