Columbus Mutual L. Ins. Co. v. Dennull

The defendant in error brought an action in the court of common pleas of Warren county for partition of the real estate described in the petition. The property was appraised at $5,757.

The Columbus Mutual Life Insurance Company answered, setting up its mortgage on the premises in the sum of $5,800. Other parties to the action set up their mortgages and judgment liens. The claims against the property exceeded $9,000.

At the sheriff's sale, the Columbus Mutual Life Insurance Company bid the amount of its mortgage. It was sold to that company. No money was paid by the insurance company, except the appraisers' fees, cost of advertising and selling the property, and the ordinary court costs.

The court then allowed counsel for Dennull $205.20, as an attorney's fee, on a percentage basis, as in other partition cases. The question here is whether or not the insurance company can be compelled to pay said attorney's fee.

The rule is that in a partition proceeding the court is authorized, under Section 12050, General Code, to allow a reasonable fee to plaintiff's attorney, to be taxed as costs in the case, when services are rendered for the common benefit of all the parties. Young v. Stone, 55 Ohio St. 125, 45 N.E. 57. It cannot be said that the services rendered in this case were for the common benefit of all the parties to the action.

The question of allowing fees was discussed in the case ofStone v. Strong, 42 Ohio St. 53. It was there held: "If a mortgagee, whose lien is fixed by the court, becomes the purchaser at such sale, the executor or administrator is not entitled to a per centum compensation on that part of the purchase money applicable to the satisfaction of his mortgage."

Counsel for the defendant in error does not cite any authority authorizing the allowance of an attorney's fee on a state of facts similar to those disclosed by the record in this case.

The property was encumbered in a sum greatly in excess of its appraised and actual value.

The mortgagee, in its answer and cross-petition, prayed for judgment, the foreclosure of its mortgage, and the sale of the property. The court ordered the property partitioned and sold in the partition proceeding rather than sold on foreclosure. The sale did not produce any fund to be distributed by the court.

It seems to us that the two cases above cited settle the question that when property is sold at a judicial sale and bid in by the mortgagee for a sum that only satisfies its mortgage, and when the mortgagee pays such costs as it would be compelled to pay in a foreclosure action, the court does not have authority to compel the mortgagee to pay an attorney's fee as in partition.

The judgment of the court below will be reversed, and the cause remanded, with instructions to disallow the attorney's fee.

Judgment reversed.

BUCHWALTER, P.J., and HAMILTON, J., concur.