
    No. 865
    DOOLITTLE v. BOWMAN
    Ohio Appeals, 8th District, Cuyahoga County
    No. 4616.
    Decided Nov. 5, 1923
    257. MORTGAGES.
    Acceleration clause in mortgage on note which has no acceleration clause nor reference to the mortgage does not justify personal judgment for entire principal before due on note.
    55A. BILLS AND NOTES.
    Transferee of note and mortgage after part installments due is not purchaser before maturity and a fortiori if transferred merely as security.
   LEVINE, J.

Epitomized Opinion

Bowman executed and delivered to Rogers his promisory note for $1700 secured by a real estate mortgage. Rogers transferred this note and mortgage to Doolittle as security for a debt of Rogers to him. At that time several of the installments had fallen due under the note. The mortgage contained an acceleration clause but the note did not, and the note did not refer to the mortgage. Baw-man is seeking a judgment for the full amount of the note and the foreclosure of the mortgage and is relying on the acceleration clause of the mortgage as governing the note because the last installment of the note would not be due until Sept. 1, 1924. In affirming the judgment for Bowman, the Court of Appeals held:

Attorneys — H. J. Doolittle, for Doolittle; R. R. Cheeks, for Bowman.

1. As the note does not refer to the mortgage it is doubtful if the provision accelerating the mortgage accelerates .the payments on the note and it is also doubtful if a personal judgment for the entire sum of $1700 can be had against the maker before the entire amount is due by the terms of the note. 42 OS. 113.

2. As the note and mortgage were transferred to Doolittle after several installments of the note had fallen due, Doolittle was not a purchaser before maturity, and as the note and mortg-age were transferred to him merely as security Doolittle was not a holder in due course and the defenses which could have been asserted against Rogers may be asserted against Doolittle. (“That such defenses exisit there is no doubt, and no issue is raised upon that point.”)  