Fleurot v. Fletcher

8 Ohio N.P. 318

Opinion

Spiegel, J.

The petition in this case alleges that plaintiff loaned defendant $15,000 for a term of three years, receiving as security a deed in fee simple to certain real estate, giving a lease back to ■defendants; that said loan has not been repaid, and that, therefore, he prays a foreclosure and sale of said property, the deed being in fact a mortgage. The defendants demur, because—

•Maxwell & Ramsey for demurrer. Ben. B. Dale for plaintiff.

1. The petition discloses upon its face a defect of parties.

2. The petition does not state facts sufficient to constitute a cause of action.

The demurrer must be sustained upon the first ground. The petition shows that George G. Fleurot is the record owner of the estate in fee simple. As a reformation of the deed and lease is sought, so as to make it a mortgage, a foreclosure of the same without making the grantee's wife a party, would not bar her after her husband’s death, to disavow the decision and ■claim that the transaction was an absolute conveyance to her husband. It follows, therefore, that she is a necessary party to make title under this proceeding.