Second National Bank of Warren v. Boyle
Second National Bank of Warren v. Boyle
Opinion of the Court
The question to be determined is whether the indebtedness, originally evidenced by the 1948 note of the mortgagor to the bank, is secured by the 1946 mortgage of the mortgagor to the bank.
It is argued that, because the 1946 mortgage did not obligate the bank to make the 1948 loan to the mortgagor, the 1946 mortgage could not secure the indebtedness evidenced by the 1948 note. Kuhn v. Southern Ohio Loan & Trust Co., 101 Ohio St., 34, 126 N. E., 820,
It is contended that some of the language of Read, J., in the court’s opinion in Spader v. Lawler, 17 Ohio, 371, requires the conclusion that a mortgage cannot secure future advances which the mortgagee is not obligated to make. The difficulty with that contention is that Judge Read, in his opinion, admitted that it was not necessary in that case to reach such a conclusion. The other judges, who concurred with him in the judgment of the court, expressly avoided such a conclusion. The holding in that case was that a mortgage with a clause to secure future advances would be postponed to a second moi’tgage recorded before the future advances wmre made. In the instant case, the indebtedness, evidenced by the 1948 note, was incurred before either the judgment creditor, the state, or the United States secured any lien against the real estate described in the 1946 mortgage.
'This court has held that a mortgage to secure future advances, which the mortgagee is not obligated to make, is valid, and that the liens under the mortgage for such advances are entitled to priority over a judgment lien which attaches after such advances are made Kramer v. Trustees of Farmers’ & Mechanics’ Bank, 15 Ohio, 253. See Choteau, Merle & Sandford v. Thompson & Campbell, 2 Ohio St., 114; West v. Klotz, 37 Ohio St., 420, 427. This holding apparently accords with the great weight of authority outside Ohio. See annotations, 1 A. L. R., 1586, 81 A, L. R., 631, and 172 A. L. R., 1079.
As stated in another way by Hitchcock, J., in the court’s opinion at page 260 in Kramer v. Trustees of Farmers’ & Mechanics’ Bank, supra:
“If Doyle had not indorsed the paper, or made himself security for Wells, Henry & Co., the mortgage would have been void for want of consideration, or, in other words, it would not have operated as an indemnity, for there would have been nothing against him for which any indemnity could have been required. It is true, too, that Doyle was under no legal obligation to indorse; but when he did indorse, and thereby made himself liable for Wells, Henry & Co., as was contemplated when the mortgage was executed,
This raises the question, in the instant case, as to whether the bank, by what it did and said before and at the time of the 1948 loan, expressed an intention that that loan was to operate as an acceptance of the 1946 offer by the mortgagor that the 1946 mortgage should secure indebtedness thereafter incurred by tfte the mortgagor to the bank. Unless the bank did express such an intention, the action of the bank, in making the 1948 loan, would not represent the manifestation of assent to the mortgagor’s offer which would be essential to the existence of a contractual obligation to secure the 1948 loan by the 1946 mortgage. See Dayton, Watervleit Valley & Xenia Turnpike Co. v. Coy, 13 Ohio St., 84, 94; Restatement of the Law of Contracts, Section 55, Comment a; 1 Williston on Contracts (Rev. Ed.), 42, 43 (Section 22), 190 (Section 66), 191 (Section 67), 192, 193 (Section 67A).
The 1948 indebtedness was originally evidenced by a written instrument, executed by Rita R. Boyle, d. b. a. Red Top Cab, and delivered by her to and accepted by the bank. The first portion of this instrument is in the usual form of a promissory note. There is a provision for acceleration on account of nonpayment of any installment, a provision authorizing a cognovit judgment and a provision for the interest rate after maturity. The instrument then provides:
“To secure the payment of the above note we hereby sell or convey to the Second National Bank of Warren, successors and assigns, the following described personal property, to wit:
“Secured by 10 Kaiser sedans and 1 1947 DeSota, and 2 1946 Plymouths and 5 1947 Plymouths described on schedule attached.
“ (Pull amount of note to be recorded on each title.)
“ * * * If the holder hereof shall, at any time before
“We agree to keep said property at all times in good condition and repair and to keep the same insured against loss by fire, collision and theft for such amounts as the holder hereof may specify, for the benefit of the holder hereof.
“If the note secured by this mortgage is fully paid then this transfer shall be void; otherwise to remain in full force and effect.” (Emphasis added.)
There is nothing on the face of the instrument to indicate that anything other than the vehicles described therein was to be security for the indebtedness evidenced thereby. The description therein of the note, as “the note secured by this mortgage,” when coupled with the absence of any reference to other security, tends to negative any suggestion that the indebtedness, evidenced by the note, was additionally secured.
All the provisions of the instrument are a printed form of the bank, except the date, the amount, the due date and amount of installments, the signature of the mortgagor, and the description of the collateral.
The provisions of the note and chattel mortgage, evidencing the 1948 loan, do not indicate any connection between the 1946, mortgage and the 1948 loan. Apart from the existence of the mortgage and its provisions, there «is no evidence from which any such, connection could even be inferred. While “Rita R. Boyle, d. b. a. Red Top Cab,” who signed the note and chattel mortgage evidencing the 1948 loan, is
Furthermore, there is not even any allegation by the bank in its pleadings that the loan of 1948 was made either in reliance upon or on the faith of the 1946 xnortgage. Apart from the existence and provisions of the mortgage, nothing in the pleadings indicates that, the 1946 mortgage was even a factor in influencing the bank to make the 1948 loan.
It is apparent therefore that, at least so far as the 1948 indebtedness is concerned, the bank has not alleged in its pleadings an acceptance of the mortgagor’s offer to secure the future obligations of the mortgagor to the bank under the terms of that mortgage. We suppose that no such allegation was made because it could not have been supported by the evidence. That supposition is confirmed by the facts hereinbefore referred to, tending to negative any expressed intention on the part of the bank to accept that offer of the mortgagor.
This differentiates the instant case from the Kramer case. Thus it is disclosed in the report of. the Kramer case, at page 256, that the mortgagee there involved alleged reliance upon the mortgage indemnity in continuing to indorse paper of the mortgagor. In that report, at page 258, it appears that there was a finding that the mortgagee did so rely.
A number of the cases, holding that a mortgage may secure future advances which the mortgagee is not obligated to make, apparently recognize that such future advances must be made in reliance upon or on the faith of the mortgage. Ackerman v. Hunsicker,
Judgment affirmed.
Concurring Opinion
I concur in paragraph one of the syllabus but dissent from the judgment on authority of Kramer v. Trustees of Farmers’ & Mechanics’ Bank, 15 Ohio, 253. I am of the opinion that the Kramer case is in accord with the overwhelming weight of authority. 1 A. L. R., 1586; 81 A. L. R., 631; 172 A. L. R., 1079.
Reference
- Full Case Name
- Second National Bank of Warren, Appellant, v. Boyle Et Al., Appellees
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- Published