
    BURRER v KEYSTONE CONSTRUCTION AND LOAN CO et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 1194.
    Decided Feb 28, 1935
    Harry M. Wolfe, Dayton, for The Sterling Lumber Co.
    Roy S. Fitzgerald, Dayton, and Thomas H. Ford,' Dayton, for The Fidelity Building Association.
   OPINION

By THE COURT

We have considered the record and the briefs of counsel with care and upon such consideration are of opinion that the findings of fact and also the findings of law, based upon such facts, as set forth in the report of the referee, are sustained by the evidence and by the authorities.

In view of the discussion of a number of the pertinent issues found in the written decision of Judge Snediker and a further review thereof in the findings of the referee, we do not deem it necessary to again restate the same,

We cannot escape the conclusion that Charles V. Wehage was without authority to execute the general waiver in favor of The Fidelity ' Building Association. We think the record also establishes the fact that The Fidelity Building Association failed to make distribution of the loan in question as required by the provisions of §8321-1 GC and therefore lost its priority as against the mechanics lien of The Sterling Lumber Company.

We find no provision in the statute for the payment of costs out of funds made available through a mortgage loan executed in compliance with the provisions of §8321-1 GC.

Our review of the evidence and the authorities leads us to the conclusion that the report of the referee as made to this court should; be approved and an entry drawn in accordance therewith.

KUNKLE, PJ, BARNES and HORNBECK, JJ, concur.  