Burse v. Harold

31 N.E.2d 706, 66 Ohio App. 80, 30 Ohio Law. Abs. 108, 19 Ohio Op. 73, 1939 Ohio App. LEXIS 338

• Court: Ohio Court of Appeals
• Decided: June 22, 1939
• Docket: 16410
• Status: Published

Opinions

OPINION

By LIEGHLEY, J-

William Craig, former husband of Mogine Craig Burse, was killed in the course of his employment in 1925, leaving surviving him. Mogine Craig, his widow, and two small children, James Craig and Leary Craig. The Ohio Industrial Commission under favor of §1465-83, GC, awarded compensation. The award took the form of a purchase of a house and lot in Cleveland, and the conveyance named as grantees Mogine Craig, individually, and as trustee for James Craig and Leary Craig, with a restriction against alienating or mortgaging said premises for a period of six (6) years, without’ the consent of the Industrial Commission.

Leary Craig, one of the minors, died in 1925 and her beneficial interest passed to the widow and the other min- or James Craig. Mogine Craig subsequently married Fate Burse.

In 1930, plaintiffs contracted for the installation of a furnace in said premises with The General Furnace Company. The work was completed and accepted in 1930 and a note executed in the sum of $272.00 therefor, upon which judgment was taken in 1931.

In 1934 about three (3) years after the expiration of the restriction contained in the deed, Mogine Craig Burse deemed it advisable to make certain repairs and additions to the house on said premises to the end that rooming facilities' would be enlarged and her revenues for the support of herself and minor increased by the letting of rooms. At this timé unpaid taxes had accrued on the premises in the sum of • about $600.00. With a view to financing the proposed improvements above mentioned and the payment of the accrued-taxes, a $500.00 mortgage was executed by plaintiff to defendant, Thad B.. Harold, and a $3000.00 first mortgage was executed and, assigned to The American • Lumber Company as evidence of se-: curity for lumber and material proposed. to be used in making the improvements. These mortgages were and were intended to be construction mortgages and to evidence and secure only the value of materials furnished. and labor performed and no claim for any greater amount has been urged or1 made in this litigation below.

In November, 1934, some controversy ■ arose resulting in the cessation of the work of improving the property under these contracts. Early in 1935, this action was instituted by plaintiffs against the defendant Thad B. Harold to cancél said mortgage of $500.00. The defendant, Harold, cross-petitioned and prayed for foreclosure of his mortgage. The Lumber Company intervened and sought foreclosure of the $3000.00 mort- . gage. The Furnace:. Company intervened with the view, to enforcing the. lien of its judgment.- The trial resulted in- a decree of foreclosure and a de-. nial of the prayer of plaintiff’s petition..

The court ordered the payment.of all: taxes and found that there was due the. lumber company the sum of about $1100.00; the - furnace company about-$273.00; the defendant, Thad B. Harold, the sum of $125.00 and one Artine, the sum of- $26.25 all with interest..

■ A sale ■ of the premises was ordered with distribution as in the decree pro-. vided.- The-premises .were duly sold and, sale confirmed.

Thereupon,- a petition by next.friend of James Craig, a minor, was filed by leave of court to vacate the foregoing. judgment and decree of foreclosure predicated for the most part upon the., fact that the minor had. not been ex-. pressly named and made party to the. foregoing proceedings in foreclosure.

Trial was had- on said petition to va cate eventuating into a decree holding that the aforesaid mortgages and liens were invalid as against the interest in said property of said minor defendant, James Craig, and that all proceedings as against said James Craig be vacated, set aside and held for naught and that the mortgage and liens be cancelled as to said minor, James Craig and the title of said James Craig be quieted.

Appeal was prosecuted from this decree by the defendants and Frank H. Hendricks, purchaser of said premises at sheriff’s sale.

Said award by the Industrial Commission to Mogine Craig individually and as trustee for the two minor children in the form made and through the instrumentality of a deed. v/ith the conditions, restrictions and limitations therein contained, constituted Mogine Craig a trustee of an express trust. Under favor of §11244, GC, she had authority to institute this action as such trustee for and in behalf of said trust estate without making said minor beneficiary a party plaintiff or defendant.

A trustee of an express trust has a right to prosecute or defend an action in the interest of her trust and need not name the beneficiaries as plaintiffs or defendants whether they be adults or minors. The beneficial. interest is represented through the trustee and it is our view that the failure to make said minor a party plaintiff or defendant in the foreclosure proceedings does not in any sense invalidate said proceedings and decree.

Even though we be mistaken in the conclusion above stated, this minor and his interests were fully represented and protected through the trustee and her counsel throughout the foreclosure proceedings. Close scrutiny of the transcript and record before us compels the conclusion that substantial jústice requires that the decree vacating the prior foreclosure proceedings and decree should be vacated and the foreclosure proceedings and decree be approved and confirmed.

This cause is remanded for further proceedings to consummate and carry out the orders contained in the foreclosure decree. Decree accordingly, O. S. J. Exceptions. ■

TERRELL, PJ., concurs. MORGAN, J., dissents.