
    Leavans v. Bank.
    
      Mortgages—Attorney's fees—Stipulations for, void—Public policy.
    
    (Decided October 31, 1893.)
    Error to the Circuit Court of Cuyahoga county.
    On the 11th day of April, 1887, George F. Eberhard executed and delivered to the plaintiff in error a mortgage on certain real estate owned by him to secure the payment of thirty-five hundred dollars on April 1, 1890, with interest at six and one-half (6J) per cent., payable semi-annually. The mortgage contained a provision that in case an action should be brought to foreclose it a reasonable sum as an attorney fee, the amount to be fixed by the court, should be included in the decree and paid from the proceeds of the mortgaged property. Afterwards, a second mortgage, executed by the mortgagor, was taken upon the same property for the benefit of the defendant in error.
    On October 10, 1889, the mortgagor, being in default for the non-payment of interest, an action was brought by the plaintiff in error to foreclose the mortgage. The mortgage was foreclosed, and the court of common pleas in the decree found the sum of one hundred dollars ($100) to be a reasonable fee for the plaintiff’s attorney for his services in the foreclosure proceeding, and ordered the same to be paid out of the proceeds of the sale of the mortgaged property.
    The defendant in error, having been made a party to the action, excepted to that part of the decree which provides for the payment of an attorney fee, and instituted proceedings in error in the circuit court to modify the decree in this respect, which was accordingly done. Whereupon the plaintiff in error commenced proceedings in this court to reverse the modifying judgment.
    
      Sherman, Hoyt & Dustin, for plaintiff in error.
    No brief for defendant in error.
   By the Court:

A stipulation -in a mortgage to the effect that, in case an action should be brought to foreclose it, a reasonable attorney fee, to be fixed by the court, for the sendees of the plaintiff’s attorney in the foreclosure action, should be included in the decree and paid out of the proceeds arising from the sale of mortgaged property, is against public policy and void.

Judgment affirmed.  