
    CLEVELAND TRUST CO. v FIRST CHURCH OF DISCIPLES OF CHRIST, et
    Ohio Appeals, 9th Dist, Lorain Co.
    No. 910.
    Decided March 7, 1939.
    Fauver & Fauver, Elyria, for appellee.
    Myron T. Brenneman, Wooster, and Ford G. Ross, Wooster, for appellant.
   OPINION

PER CURIAM:

This is an appeal on questions of law and fact. The petition filed by the Cleveland Trust Co., the appellee herein, seeks the foreclosure of a mortgage executed by the defendant below The First Church of Disciples of Christ of Lorain, Ohio, to said appellee, the marshaling of the several liens upon the premises, a judgment upon the note secured by the mortgage, and the foreclosure of the mortgage.

The defendant A. J. Schantz, Sons & Co., appellant herein, sold to said The First Church of Disciples of Christ of Lorain, Ohio, a pipe organ to be installed in said church edifice, upon a conditional sale contract which reserved the title to the organ as personal property in A. J. Schantz, Sons & Co. until the same was paid for in full, in compliance with the provisions of said contract.

The only question presented for determination is whether or not the mortgage of the Cleveland Trust Co. is a lien upon said pipe organ; or whether, under the facts and circumstances of this case, said pipe organ is personal property and therefore not subject to the lien of plaintiff’s construction mortgage. We deem it sufficient merely to state our conclusion upon said question.

It is the opinion of this court that, under the facts and circumstances disclosed by the evidence herein, the organ in question is personal property, and not subject to the lien of plaintiffs construction mortgage.

During the consideration of this case we discovered that a case that might have some bearing upon the disposition of this case was pending in the Supreme Court, and for that reason the disposition of this case has been delayed until we could analyze the facts in that case, and the opinion of the Supreme Court thereon.

We have now reached the conclusion that that case (Holland Furnace Co. v Trumbull S. & L. Co. 135 Oh St 48) is not controlling, and that our decision in the instant case is not in conflict therewith.

A decree of foreclosure as ordered in the Common Pleas Court may be prepared, excepting from the operation thereof said pipe organ, title to which we find to be in A. J. Schantz, Sons & Co.

WASHBURN, PJ., DOYLE, J., and STEVENS, J., concur.  