Columbus Mutual L. Ins. Co. v. Dennull

153 N.E. 133, 21 Ohio App. 363, 4 Ohio Law. Abs. 581, 1926 Ohio Misc. LEXIS 893, 1926 Ohio App. LEXIS 470

• Court: Ohio Court of Appeals
• Decided: May 24, 1926
• Docket: 119
• Status: Published

Opinion

CUSHING, J.

Michael Dennull brought an action in the Warren Common Pleas for partition of certain real estate. The property was appraised at $5757. The Columbus Mutual Life Insurance Co. set up its $5800 mortgage on the property; and other mortgages and liens made all the claims against said property over $9,000.

The Insurance Co. bought the property at the Sheriff’s Sale, bidding the amount of its mortgage. The Company paid the appraisers fee, court costs, and etc. Dennull was then allowed $205.20 as attorney fees as for a partition case. The Company refused to pay the attorney fees and prosecuted error from the order of Court allowing same. The Court of Appeals held:

1. By virtue of 12050 GC., the court is authorized to allow a reasonable fee to plaintiff’s attorney, t obe taxed in the case, when services are rendered for the common benefit of all parties. 55 OS. 125.

2. The services rendered in this case were not for the common benefit of all parties to the action.

3. “If a mortgagee whose lien is fixed by the court, becomes the purchaser at the sale, the executor or administrator is not entitled to a per centum compensation on that part of the purchase money applicable to the satisfaction ox his mortgage.” 42 OS. 53.

4. The Company merely prayed for judgment, foreclosure of its mortgage and sale of the property. The property was sold in the partition proceeding rather than on foreclosure; but no fund was produced by the sale which might be distributed by the court.

5. When property is sold at a judicial sale and bid in by the mortgagee, such mortgagee paying the costs it would have paid in a foreclosure action, the court cannot compel such mortgagee to pay attorney’s fee as in partition.

Judgment reversed.