
    Klosterman, Appellee, v. Klosterman et al., Appellants.
    (Decided February 7, 1938.)
    
      Mr. David L. Falk, for appellee.
    
      Mr. James White Shocknessy and Miss Florence G. Denton, for appellant, Home Owners’ Loan Corporation.
   Ross. P. J.

This is an appeal on questions of law from the Court of Common Pleas of Hamilton county, Ohio.

There is but one simple question presented. In a partition proceeding between co-tenants,. when the property is sold for less than, or for an amount equal to, a mortgage indebtedness, may fees be awarded the attorney for the plaintiff out of the proceeds of sale? In such partition proceeding the mortgagee is not a .necessary, but is a proper party. The property may be sold subject to the mortgage. If the mortgagee refuses to join in the proceeding and request foreclosure, he cannot be compelled to do so.

In the instant case the mortgagee filed a cross-petition requesting foreclosure, and acquiesced in the several incidents of the proceeding resulting in the sale of the property. It was only when distribution of such proceeds was invoked that the mortgagee failed to ap-' prove the proceedings.

The mortgagee had the-benefit of such proceedings and sale. That the sale was ineffective to produce a sufficient sum to satisfy both the amount of the mortgage and proper costs was entirely fortuitous. It involved a chance which the mortgagee took. It could in this case, have reserved its action, and foreclosed at its pleasure. It chose to intervene.

We consider the provisions of Section 12050, General Code, therefore, applicable and find no fault with the action of the trial judge in allowing fees to counsel for the plaintiff in partition.

Judgment affirmed..

Hamilton and Matthews, JJ., concur.  