Goldsmith, Klaw & Co. v. Hain

1 Ohio Cir. Dec. 185

• Court: Pickaway Circuit Court
• Decided: December 15, 1885
• Status: Published

Opinion

Cherrington, J.

The plaintiffs in this case requested the court to charge the jury in regard to their finding that the mortgages were given to secure preexisting debts. This, we think, was unnecessary, because it was admitted in the pleadings that the mortgages were made for that purpose. But if the plaintiffs chose to submit to the finding of a jury, a fact that was admitted in the case, it was not prejudicial to the defendants. The instruction requested, we conceive, ought to have been given, for we have no doubt as to the correctness of the proposition that a mortgagee, to secure a preexisting debt, occupies no better position than his mortgagor. But the court below went further, and undertook to give the jury instructions on the same subject-matter, and that portion of the charge does not lay down the rule correctly. Besides, it was confused and embodied several matters in regard to which they were instructed to enquire and make a finding, and yet it failed to tell the jury what they should do in case they found one way or the other upon the matters submitted to them.

It was also clearly implied in the instruction given, that a mortgagee to secure a preexisting indebtedness stood in the light of a bona fide purchaser, for value, and could hold the propertj'.

We think this instruction had a tendency to mislead the jury, and for these reasons the judgment of the court below is reversed.