McCracken v. Levi

14 Ohio C.C. Dec. 584

• Court: Hamilton Circuit Court
• Decided: July 1, 1903
• Status: Published

Opinion

PER CURIAM.

It appears that $830.01 of the consideration of the $1,500 mortgage went to pay off a prior mortgage upon the property of Josephine Mc-Cracken, who, it is contended herein, was not of sound mind at the time of the execution of said $1,500 mortgage.

“A mortgage executed by an insane person is valid and enforceable, so far as the consideration was for the benefit of, or on account of the mortgagor, and its lien will be limited to the extent of the amount not paid to, or for, or by the direction of such person, and also in so far as it is given to secure the antecedent debt of the mortgagor’s husband without new or other consideration.” (Superior court, general term, Force, J.) Mahoney v. Goepper, 8 Re. 154 (6 Bull. 33).

It is contended' that the first mortgage upon which the $830.01 was paid was subject to the same infirmity as the one herein being foreclosed, but this does not appear from the record.

The mortgage herein must be given force and effect, to the extent of $830.01 and interest, which with costs will exhaust the proceeds of the property, so that any question beyond that must be academic. Any question beyond that has so little substance as to make us resolve any doubt in favor of the judgment below with more than ordinary certainty.

Judgment affirmed.