
    Williams, Admx., v. Constance, Jr., et al.
    (Decided September 20, 1934.)
    
      Mr. Van C. Gooh and Mr. James Deed, for Ralph E. Smith and Susan Smith.
    
      Mr. William McE. Weldon and Mr. Henry P. Huston, for the Farmers Savings & Trust Company.
   Lemert, J.

This cause is before this court upon a demurrer of the Farmers Savings & Trust Company, one of the defendants herein, the demurrer being to the third amended answer of Ralph E. Smith. It is claimed on behalf of the demurrer that the third amended answer of Ralph E. Smith does not state facts sufficient to constitute a cause of action for the relief prayed for therein.

The pleadings in the case are lengthy and voluminous, but when carefully analyzed in the simplest terms, we find that the defendants, Ralph E. Smith and his wife, Susan, entered into a contract dated September 28, 1928, with the Farmers Savings & Trust Company, as trustee, for the purchase of five acres of land, which was then subject to a mortgage of $3,500 in favor of the Lumbermen’s Mutual Insurance Company. That by the terms of the contract, they were to pay for the property as follows: $1,618.04 upon the signing of the agreement and $45 per month, beginning November 18, 1928. That Smith paid altogether on said contract $3,305.74, which after the payment of taxes, interest and expenses out of said payments, was to be applied upon the principal of his obligation. That the defendant bank failed to pay any portion of that money to the Lumbermen’s Mutual Insurance Company to apply on its mortgage. That said mortgagee filed an answer and cross-petition herein on April 29, 1932, alleging that its note was due and asking for foreclosure. That Smith ceased making payments on the — day of August, 1932, and on December 1, 1932, tendered the possession of the property to the Farmers Savings & Trust Company. Upon these allegations, Smith is asking judgment against the Farmers Savings & Trust Company for the full amount of the money he paid on the contract, to-wit: $3,305.74.

We note from the pleadings filed herein that they clearly show that interest had been paid the Lumbermen’s Mutual Insurance Company, semi-annually, up to March 28, 1932, so that the amount due the Lumbermen’s Mutual Insurance Company on their mortgage was $3500 with interest at six per cent from March 28, 1932, and that the amount then due from Smith to the bank was $5,882.43, with interest from June 3, 1933. Even if the entire amount paid by Smith was credited on his contract, it would then leave an unpaid balance of $4,194.26, which is $694.26 in excess of the balance due the mortgagee, so that on the face of the records there has been and still is considerably more due from Smith to the bank than the balance due on the mortgage which Smith complains of.

Upon such state of facts, this does not constitute a defense for the vendee. This being true, we are of the opinion, after carefully construing this third amended answer in the instant case, that its allegations and averments bring it within the finding of this court in the case of Beck v. Eder, 46 Ohio App., 323, 183 N. E., 666.

The original petition in this case shows that it was filed by the administrator of the original owner asking that the interest of the original owner, Jennie Balliett, be sold to pay debts, and that the interest of the purchasers of any portion of the real estate, including Ralph Smith, be protected.

We note that Smith does not allege that he has ever been ousted from the premises he agreed to purchase, but he says only that he offered to surrender the premises to the vendor on December 1, 1932, without alleging that the offer was accepted.

In the amended answer and cross-petition of the Lumbermen’s Mutual Insurance Company,' filed in January, 1934, in which that company amended its prayer and simply asked that if the premises were sold that they be sold free and clear of all liens, and that the proceeds be applied to the payment of its claim as a. first lien thereon, so that when the third amended answer of Smith was filed the threat of foreclosure upon the mortgagor did not exist, nor had the threat of the mortgagee to foreclose on this property resulted in dispossessing Smith.

We are clearly of the opinion that there were no grounds in law or in equity for Smith to throw up his contract to buy the property and sue the vendor for the return of the money he had paid on the purchase contract.

We are of the opinion that the demurrer in this case should be sustained because the pertinent facts stated in the so-called third amended answer of Smith do not justify his cancellation of the land contract, or the recovery of all the money paid on the contract. Secondly, upon the facts alleged the court could not give Smith a judgment against the Farmers Savings & Trust Company except in its capacity as trustee under the contract entered into. The demurrer is sustained.

Demurrer sustained.

Sherick, P. J., and Montgomery, J., concur.  