Epitomized Opinion

Published Only in Ohio «Law Abstract

In a foreclosure action Weasner and Millen each claimed to be the owner of the same note secured by mortgage. Pilio executed a note payable to Hawk for $2500, secured by mortgage. The mortgage was properly recorded. Later Hawk sold and transferred the mortgage to Millen and a written transfer was placed on both the note and mortgage. The transfer on the mortgage was never recorded.

Subsequently Millen delivered the note and mortgage to Hawk to be exchanged for another note and motgage. Hawk sold the note and mortgage to Weasner and erased the name of Millen from the transfer on the note and mortgage and inserted the name of Weasner, who recorded the transfer of the mortgage. On appeal it was held:

1. The mere changing of the written transfer is not forgery; it must be done with fraudulent intent and in transferring the note and mortgage Hawk did not change the intent for which these papers were delivered to him.

2. Granting that it was a forgery where one of two innocent parties must suffer, the party who made it possible for the wrongful act to be committed must lose.

Judgment in favor of Weasner.