
    KLOSTERMAN v KLOSTERMAN
    Ohio Appeals, 1st Dist, Hamilton Co
    No 5368.
    Decided February 7, 1938
    David L. Falk, Cincinnati, for appellee.
    James White Shocknessy, Cincinnati, and Florence G. D-nton, for appellant, Home Owners’ Loan Corporation.
   OPINION

By ROSS, PJ.

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 the 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 tc join in the proceeding, and requests foreclosure, he cannot be compelled to do so.

In the instant case, the mortgagee filed a cross-petition, requesting foreclosure and asquiesced in the several incidents of the proceeding resulting in the sale of the property. It was only when distrbiution of such proceeds was invoked that the mortgagee, failed to approve 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 §12050, GC, 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 & MATTHEWS, JJ, concur.  