
    Stripe v. The National Fireproofing Co.
    
      Foreclosure — Jurisdiction under cross-petition — Failure of service of summons, etc. — Rights of mortgagor and mortgagee— After condition broken — Ejectment.
    1. Jurisdiction to render judgment on a cross-petition is not conferred by the service had on the petition praying for foreclosure Of a mortgage, where the cross-petition was not filed for several months after the entering of a decree of sale on the petition, and did not ask for the sale of the' same land as . that.described in the petition but had reference to a different parcel of land, and the relief sought was not the same but of a different nature, and the codefendant whom it is sought to hold under the service upon the petition did not enter his appearance under the cross-petition.
    2. But a suit in ejectment does not lie upon the petition of a mortgagor, or his heirs and devisees or supposed successors in title, where the condition of the mortgage has been broken; from which it follows that the defective service in the instant case is without avail to the plaintiff who claims title through the mortgagor.
    (Decided March 24, 1916.)
    Error: Court of Appeals of Stark county.
    
      Mr. J. W. Craine and Mr. J. W. Jeffers, for plaintiff in error.
    
      Messrs. Power ene, Ambler & Power ene and Messrs. Kratsch & Maier, for defendant in error.
   Houck, J.

The parties to this error proceeding stand here in the same relation to each other as in the court below. The original action was one in ejectment and, a jury being waived, was submitted to the court below on the petition of the plaintiff, the first defense in the second amended answer of the defendant, The National Fireproofing Company,. the amended reply thereto and an agreed statement of facts. The court of common pleas found for the defendant, and error is now prosecuted to this court seeking a reversal of that judgment. The facts necessary for a proper determination of this controversy, obtained from the agreed statement of facts, are as follows:

“John Stripe was the owner of the northwest quarter of Section No. 31, Township No. 12, Range No. 8, Stark county, Ohio. On June 1, 1864, to secure certain notes John Stripe executed and delivered to Daniel J. Wise a mortgage on the south half of said northwest quarter. Later Daniel J. Wise sold and transferred his notes and mortgages to John H. Wise. John H. Wise died, and these notes and mortgages came into the possession of Oliver P. Shanafelt as his administrator. On April 7, 1877, John Stripe and wife, for the purpose of securing nine promissory notes, executed and delivered to Hiram Stripe a mortgage on the entire'northwest quarter, excepting 1.35 acres. This mortgage was the second mortgage on the south half and the first mortgage on the north half of said northwest quarter. On the 8th day of April, 1878, Hiram Stripe transferred his notes and mortgage to Hiram R. Wise. On the 15th day of March, 1878, John Stripe and wife, to secure certain notes, executed and delivered to John Miller a mortgage on the entire northwest quarter, excepting said 1.35 acres, which mortgage was the third mortgage on the south half and the second mortgage on the north half of said real estate.

“Oliver P. Shanafelt, as administrator, on the 13th day of May, 1884, commenced an action to foreclose his mortgage on the south half of said northwest quarter, making John Stripe, Hiram R. Wise, John Miller et al., defendants, and served all of the defendants with summons excepting John Miller. John Stripe having filed an answer to the petition of Oliver P. Shanafelt, as administrator, said administrator having filed a reply to said answer, the cause came on for hearing on said petition, answer and reply, and on the 2nd day of January, 1885, a decree was rendered in favor of the plaintiff, Oliver P. Shanafelt, as such administrator. At the time of this decree, which was January 2, 1885,.Hiram R. Wise had not filed an answer or cross-petition in this case, although the case was started May 13, 1884, and Pliram R. Wise was duly served with summons. On September 11, 1885, being eight months and nine days after the trial and decree entered in favor of the plaintiff, Oliver P. Shanafelt, Hiram R. Wise filed his cross-petition praying to have his mortgage foreclosed not only on the south half but on the north half of said northwest quarter. No summons was issued under this cross-petition, nor did John Stripe enter his appearance. On March 1, 1886, the south half of said northwest quarter was sold under the decree rendered in favor of Oliver P. Shanafelt, administrator, and on March 3, 1886, said decree was confirmed and deed ordered, the purchaser being Hiram R. Wise. On March 1, 1886, Hiram R. Wise obtained a judgment and decree under his said cross-petition. On August 17, 1891, Hiram R. Wise assigned and transferred whatever interest he had in his decree to George W. Crouse and on December 14, 1895, the north half of said northwest quarter was sold under the Hiram R. Wise decree to George W. Crouse, and on December 16, 1895, the sale was confirmed by the court and said Crouse entered into possession of said premises and continued thus until he sold same to the defendant, the National Fireproofing Company, which was in the actual possession of same at the commencement of the suit in ejectment. That John Stripe on November 16, 1892, executed his last will and testament in which he attempted to devise the real estate' in question to certain heirs, and the plaintiff now claims title thereto by said devise and certain deeds conveying the same to him. That said John Stripe departed this life on July 18, 1894, and at said time was in the actual possession of the real estate in question.”

We find from the facts in this case that but two questions are presented for determination by the court and that they are decisive of this controversy. The first question is, Did the court have jurisdiction over the person of John Stripe in face of the fact that no summons was served on him and there was no waiver of service of summons by him on the cross-petition of Hiram R. Wise? The facts clearly show that the petition upon which service was had did not include the real estate sought to be sold under and by the cross-petition of Hiram R. Wise, but embraced an entirely different parcel of land, that the relief sought in the cross-petition was of a different nature and not the same as in the petition, and therefore service of summons on the petition certainly could not bind John Stripe as to the cross-petition when he had not been served with summons and had not otherwise entered his appearance with reference to the relief sought in the cross-petition.

We feel that our supreme court has finally determined this question in the case of Southward v. Jamison et al., 66 Ohio St., 290, the first syllabus being as follows:

“So long as a cross-petition in an action is strictly confined to ‘matters in question in the peti- . tion/ the summons issued on the petition would be sufficient notice to sustain a. judgment rendered on the cross-petition; but when the cross-petition sets up matters which are not drawn ‘in question in the' petition,’ and seeks affirmative relief against a codefendant, of a nature different from that-sought in the petition, a summons to the party to be charged, issued on the petition, will not confer jurisdiction to render judgment on the cross-petition, especially when the cross-petition is filed after the defendant thereto is in default for answer to the petition, and a summons on the cross-petition in such case is necessary.”

But we do not think this question is decisive of the real problem to be solved in the case at bar. We hold that it must be determined upon the rights of mortgagor and mortgagee after conditions broken, which brings us to the second question in this inquiry. What are the legal rights of the mortgagor and mortgagee of real property after condition in the mortgage is broken, and was the remedy of plaintiff, if he had any, ejectment?

We think not. Section 11903, General Code, provides: “In an action for the recovery of real property, it shall be sufficient if the plaintiff states in his petition that he has a legal estate therein and is entitled to the possession thereof, describing it with such certainty as to identify the property, and that the defendant unlawfully keeps him out of the possession.” The plaintiff must allege and prove that he has a legal estate in the real estate of which he seeks to gain possession. Did Isaac Stripe have a legal estate in the real estate in question at the time of the commencement of this suit ? Certainly not. He had the title, if any, that John Stripe had in same. What title did John Stripe have at the time of his decease ? Simply the equity of redemption growing out of his rights as mortgagor after the condition in the mortgage had been broken.

What are the rights of a mortgagor in the mortgaged premises after the condition in the mortgage is broken?

“A mortgage of real estate is regarded, in equity, as a mere security for the performance of its condition of defeasance, and where that condition is the payment of a debt, the security is regarded as an incident of the debt. Swartz v. Leist, 13 Ohio St., 419.

“The mortgage being, in equity, regarded as a mere security for the debt, the legal title to the mortgaged premises remains in the mortgagor, as against all the world, except the mortgagee, and also as against him until condition broken, but after condition broken the legal title as between mortgagor and mortgagee is vested in the mortgagee. Allen v. Everly, 24 Ohio St., 97; Hibbs v. Ins. Co., 40 Ohio St., 543, 559; Ely v. McGuire, 2 Ohio, 223; Martin v. Alter, 42 Ohio St., 94. * * *

“In our own state, the right to foreclose a mortgage after condition broken, either by a strict foreclosure, or by a foreclosure and sale of the mortgaged property, continued down to the adoption of the code of civil procedure in 1853. By sec. 374 of the code [which is now Section 11588, General Code] it is provided that: ‘When a mortgage is foreclosed, a sale of the premises shall be ordered:’ This prohibits a strict foreclosure in this state, and now, after condition broken, if the mortgagee appeals to the courts to enforce his mortgage, he must elect between two remedies. He may sue for the recovery of the possession of the land in a real action in the nature of ejectment, using his mortgage to prove his title; or, he may sue for a foreclosure of his mortgage, and a sale of the mortgaged premises.

“After condition broken, the title is vested in the mortgagee, as between him and the mortgagor, and as the right of the mortgagee to recover the possession of the land by ejectment, always existed at common law, and has not been taken away by statute, it still exists in this state.” Kerr et al. v. Lydecker, Admr., 51 Ohio St., 240, 248, 249.

Applying the above principles of law to the conceded facts in this case we can reach but one conclusion, and that is that the judgment of the common pleas court is right and should be affirmed.

Judgment affirmed.

Powell, J., and Ferneding, J. (sitting in place of Shields, J.), concur.  