Krippendorf v. Ormsby

Citations

• 26 Ohio C.C. Dec. 172
• 23 Ohio C.C. (n.s.) 273

Syllabus

<p>ACCOUNTING — EQUITY—MORTGAGES.</p> <p>(3 Cases.)</p> <p>1. Reference to Master Commissioner Proper in Equitable Proceeding to Construe and Enforce Contract and Accounting.</p> <p>A suit to construe and enforce a contract and for an accounting thereunder, for a decree ■ for the reconveyance of realty and for general relief is. a cause in equity, all matters being triable to a court and not a jury, comes within the provisions of Sec. 11490 G. C. and reference to a master commissioner is not an abuse of discretion by the court.</p> <p>2. Judgment Debtor Contrary to Judgment Creditor Cannot Compel Foreclosure Sale.</p> <p>A judgment debtor in a foreclosure suit cannot compel a sale under decree of foreclosure and order of sale contrary to the wishes and right of a judgment creditor who is the owner of the judgment and mortgage in issue, and the trial court properly on application of the judgment creditor properly ordered recalls of orders of sale issued upon the precipe of the judgment debtor therein.</p> <p>3. Prayer for Equitable Relief Effective to Cure Technical Defects in Terms of Pleading Setting Out Salient Facts in Issue.</p> <p>A contract to reconvey property to grantor upon payment of money advanced or loaned by grantee acting, as attorney for the grantor is in the nature of a mortgage; hence, notwithstanding the petition in an action to reconvey and for an accounting, and praying for specific performance and equitable relief does not in terms designate the contract as a mortgage, nór set out the relation of attorney and client, if it sets forth the salient terms of the contract and does in fact state a cause of action for a redemption of the mortgage and shows that the grantee holds the property in trust for grantor, the court may, under the general prayer for equitable relief, order the reconveyance and an accounting.</p>