
    No. 608
    STATE, Ex ATTY. GEN. v. BUCKEYE BLDG. & LOAN CO. et.
    No. 19635.
    Supreme Court.
    On motion to certify.
    Dock. Feb. 23, 1926;
    4 Abs. 142.
    Reported on account of error in former report, 4 Abs. 287.
    1283. WORKMAN’S COMPENSATION.— Does judgment obtained under favor of the Workman’s Compensation Law 1465-77 GC. have preference over, and should it be paid before, mortgages upon real estate owned by the judgment debtor, when such mortgages were filed for record prior to the rendition of the judgment?
    Attorneys — C. C. Crabbe, Atty. Gen. and R. R. Zurmehly, Columbus, and Ray Maddox, Pros. Atty., Washington C. H., for Hurley. Wilson & Rector and R. W. Poppleton, Columbus, for Bldg. & Loan Co.
   The Buckeye State Building and Loan Co. brought this action originally in Fayette Common Pleas, against Frank DeWitt and other lien holders, on certain property, for foreclosure of a mortgage lien.

It appears that the Building and Loan Company in 1917 loaned to Grant DeWitt $1,800 in return for which it accepted his promissory note secured by a mortgage upon certain real estate which he owned. This mortgage was filed for record immediately after its execution.

Subsequently, in 1920, a second mortgage on the same property was executed and filed to secure another loan. During 1922 and 1923 certain judgments were rendered against Grant DeWitt and in 1924 the State of Ohio, ex rel, Attorney General, on behalf of Mrs. Hoyt M. Hurley, recvered a judgment against Grant DeWitt under the Workman’s Compensation Law.

1465-77 GC. provides in part as follows:

“All judgments obtained in any action prosecuted by the board or by the state under the authority of this act, shall have the same preference against the assets of the employer, as is now or may hereafter be allowed by law on judgments rendered for claims for taxes.”

The real estate was sold for $3,000 at foreclosure sale, enough to pay tax liens, court costs, the Loan Company’s first mortgage and a portion of the second mortgage, and nothing on the judgment.

The Common Pleas found the priority of liens to be in the order above stated and this finding was affirmed by the Appeals.

The Atty. Gen., in the Supreme Court contends :

(1). That the Workman’s Compensation Law comes within the police power of the state and is therefore constitutional.

(2). That by virtue of the Compensation Law a judgment rendered thereunder has the same preference as judgments on claims for raxes and therefore the judgment of Mrs. Hurley would have preference over the mortgages.

The Building and Loan Company contends:

That “the assets of the employer” )as referred to in the law above quoted), when the judgment was rendered, was only the equity of redemption of Grant DeWitt, because a mortgage conveys the legal title to the mortgagee and that therefore, the mortgagees deed was of the same effect, in so far as this claim is concerned, as deed conveying the entire interest in the property.  