Cooper v. Wagner

OPINION

By ROSS, J.

There is no question that the better rule is that a foreclosure proceeding is no bar to a concurrence or successive suit upon a purchase money note secured by mortgage or vendor’s lien, unless it appears that the note has been paid by a satisfaction of a judgment or through the sale of the property in such proceeding. 19 R.Q.L., pages 509 to 512, §§305, 306, 307, 308, 309.

It is also well-settled that payment is a substantive defense and must be pleaded in order to be proved. Worst v Colonial Savings Bank & Trust Co., 11 Oh Ap, 308.

Payment was not alleged or claimed by the…