
    Havens et al. v. Horton, Jr.
    
      Deed of assignment — Power of probate court to order sale of mortgaged land — Jurisdiction thus acquired not ousted by mortgagee's action to foreclose.
    
    1. Where a deed o£ assignment has been filed in the probate court in accordance with section 6335, Rev. Stat., and the assignee has qualified, that court is clothed with jurisdiction to fully execute the trust. And where such deed conveys land encumbered by mortgage the court has power, as an incident of jurisdiction, to order the land sold and the mortgage satisfied.
    2. Jurisdiction thus acquired is not ousted by the subsequent commencement of an action by the mortgagee in the court of common pleas of the county, to foreclose the mortgage.
    [Decided June 27, 1895.]
    Error to the Circuit Court of Perry county.
    On May 11, 1893, the defendant in error commenced an action in the court of common pleas of Licking- county to recover upon six promissory notes, and for a seventh cause of action, to foreclose a mortgage on land in that county given to secure payment of the notes, against Robert Meridith, maker- and mortgagor, and George W. Havens, assignee. Havens answered, alleging in substance, “That on the 1st day of April, A. D. 1893, the said Robert Meridith made, and executed, and delivered to him his certain deed of assignment, granting and conveying to him all his property, real and personal, including the real estate described in plaintiff’s petition in trust under the insolvent laws of the state of Ohio, for the benefit of all the creditors of the said Robert Meridith.
    
      ‘ ‘ That said deed of assignment was filed in the probate court of Licking county, on the 1st day of April, A. D. 1893, at 1:20 o’clock p. m., and that this defendant on said date accepted the trust created in him by said deed of assignment, gave bond and was duly qualified by said probate court, and entered upon the discharge of his duti,es as such assignee.
    “That on the 25th day of April, A. D. 1893, an order of appraisement issued out of the probate court of said county, to three judicious, disinterested and qualified appraisers, directing and authorizing’ them to appraise according to law all property, real and personal, and assets of the said Robert Meridith, assigned as aforesaid to this defendant, and that said appraisers, acting under the authority of said order of appraisement, made an inventory and appraisement of all the assets of said estate, including the real estate described in plaintiff’s petition, and delivered said order of appraisement with their proceedings thereon to this defendant, and that this defendant filed the same in the probate court of said county, verified by his oath as required by law, on the 25th day of May, 1893.
    “And this defendant says, that on the 21st day of June, 1893, he filed a petition as assignee of the said Robert Meridith in the probate court of said county, to sell all the real estate belonging to said assignment, including the real- estate described in plaintiff’s petition, and that on July 1, 1893, the probate court, finding that' Thomas Horton, Jr., plaintiff in this action and one of the defendants in the petition to sell said real estate filed as aforesaid in the probate court by . this defendant as assignee, was a nonresident of Licking county, ordered that summons be served on said Horton by publication, and that such proceedings were had under said order, that on August 18, 1893, proof of publication of notice and service of summons thereby on said Thomas Horton, Jr., was filed in said probate court, and that on the-day of September, 1893, the said Thomas Horton, Jr., by his attorney, filed his motion in said probate court to said petition of this defendant, and afterwards, to wit: on the-day of September, 1893, on the application of said Thomas Horton, Jr., leave was given him to file his answer in said case in said probate court, and that by reason of the premises and of the facts above stated, said probate court had jurisdiction of the subject matter of plaintiff’s seventh cause of action before the commencement of plaintiff’s action in this court, and that said suit is now pending in said probate court.”
    To this answer the plaintiff demurred. The demurrer was sustained and decree of foreclosure entered. From this judgment the assignee appealed to the circuit court, where a like holding-was had and judgment rendered. To reverse this judgment the present proceeding in error is prosecuted.
    
      J. A. Flory and G. E. Daugherty, for plaintiff in error.
    
      J. B. Davies, for defendant in error.
   By the Court :

By, the filing of the deed of assignment in the probate court and the qualification of the assignee, in conformity with section 6335, Revised Statutes,, that court acquired jurisdiction of the real as well as personal property conveyed by the deed of assignment, and power to order sale of the land and payment of the incumbrance thereon, and that jurisdiction was not ousted by the commencement of an action by the mortgagee in the court of common pleas to foreclose his mortgage. Dwyer v. Garlough, 31 Ohio St., 158; Lindemann v. Ingham, 36 Ohio St., 1; Blandy v. Benedict, 42 Ohio St., 295; Sayler v. Simpson, 45 Ohio St., 141; Betz v. Snyder, 48 Ohio St., 492; (Clapp v. Banking Co., 50 Ohio St., 536; McNeil, Assignee, v. Hagerty, Auditor, 51 Ohio St., 263.

Judgment reversed and cause remanded to. the Circuit Court, with directions to overrule the demurrer and dismiss the petition.

Burket and Bradbury, JJ., dissent.  