
    Wenneman et al. v. Daniels.
    (Decided December 23, 1929.)
    
      Messrs. Chamberlin, Marty & Fuller, for plaintiffs in error.
    
      Messrs. Davis, Young S> Vrooman, for defendant in error.
   Lemert, J.

This is a proceeding in error from the court of common pleas of Cuyahoga county. It really involves but a single question of law.

The action in the court below was one to foreclose a mortgage upon certain premises situated in Cleveland, Ohio. The mortgage was given by Joseph H. Wenneman and Augusta Wenneman, plaintiffs in error, to the Park Securities Company, and was a first mortgage upon the premises. Subsequently the Wennemans sold the premises to William Daniels, subject to the mortgage, which he assumed, and agreed to pay. The Wennemans and Daniels were both made parties to the original petition of foreclosure and were served with summons.

Daniels filed an answer, and the Wennemans filed a cross-petition setting up the sale of the premises to Daniels, and the assumption of the mortgage by Daniels, and asked that the court should by its decree provide that as to any deficiency execution should be levied upon the goods and chattels of Daniels before being levied upon the goods and chattels of the Wennemans. Daniels objected to the cross-petition upon the ground that the court had no authority, for want of jurisdiction, to make such provision in the decree. Daniels also claimed that if the court had authority such a provision in the decree was not authorized by the facts in the case.

The court below, upon presentation of the evidence on the issues between the Wennemans and Daniels, held and decided that it had no jurisdiction to entertain the claim of the Wennemans, and dismissed the Wennemans’ answer and cross-petition on that ground. This proceeding in error is brought to reverse that decision of the court of common pleas.

Plaintiffs in error in this case lay great stress upon the holding of the Cuyahoga county Court of Appeals, in the case of Alflen v. McClenagham, 32 Ohio App., 43, 167 N. E., 601, decided January 28, 1924, and the decisions cited thereunder.

A careful examination of the case just referred to will reveal the fact that the question considered in that case is not the same question involved in this case. In the case just referred to it was held that the holder of a second mortgage conld obtain a personal judgment in the foreclosure action started by the holder of the first mortgage. The question in this case is whether or not the maker of a note, secured by a mortgage on property, can, in the foreclosure action, compel another party who does not appear in the chain of title to pay any judgment which may be assessed against the maker of the note, by virtue of a contract which the maker of the note claims the other party entered into with him, assuming such obligation.

Therefore, the issue submitted in the instant case is entirely different from the issue submitted in the case cited by counsel for plaintiffs in error, and the question raised by the cross-petition of the plaintiffs in error in the instant case is a question entirely foreign to the matter involved in the original suit in foreclosure, and is a question which ought to be determined in a separate action. We believe there was no place in the court below for admitting or allowing evidence to be introduced under the cross-petition of plaintiffs in error. The question raised by the plaintiffs in error made a moot question. Until after the foreclosure action has been completed and the sale of the property had, plaintiffs in error do not know and have no means of knowing whether or not any deficiency judgment will be assessed against them, and if there is no deficiency judgment there is, of course, no basis of a lawsuit between the plaintiffs in error and the defendant in error.

Upon the facts set forth in the cross-petition of plaintiffs in error, that is, that plaintiffs in error upon the request of defendant in error delivered the deed, leaving the grantee’s name therein blank, the parties thereto entered into a novation. In other words, the Wennemans gave Daniels authority to insert the name of another grantee, which was done.

On the foregoing proposition we cite Grant-Holub Co. v. Goodman, 23 Ohio App., 540, 156 N. E., 151. In Aldrich v. Friedman, 18 Ohio App., 302, it was held that a personal judgment cannot be recovered by a cross-petitioner in a foreclosure suit under Section 11306 or 11317, General Code, notwithstanding the cross-petitioner holds an express lien upon the same land upon which the plaintiff in error is seeking to foreclose.

Again, a cause of action in a cross-petition based on an assumption of payment of a mortgage by a grantee in a deed of conveyance of land is directly connected with the subject of the action set forth in a petition to foreclose the mortgages and marshal liens on the real estate within the provisions of Section 11317, General Code.

Therefore, we find and hold that the prayer of the cross-petition sought and asked for a relief that could not be granted by the court below; that it raised a moot question and seeks by specific performance a thing, which specific performance cannot award; and, finally, that the contract sued upon is not the contract between the parties by reason of novation. Therefore, it follows that we find no error in the record prejudicial to plaintiff in error, and the finding and judgment of the court below will be affirmed.

Judgment affirmed.

Shebick, J., concurs.

Judges Lemeet and Shebick, of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  