Reedy v. Burgert
Ohio Supreme Court
Covenant was brought upon a writing under seal for the payment of money. The declaration was in the usual form. The defendant pleaded in bar that the note was given for a sum of money, the payment of which was secured by a mortgage upon lands, and that the plaintiff had prosecuted a scire facias upon the mortgage, under the statute, and obtained a judgment thereon. To this plea the plaintiff demurred.
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Covenant was brought upon a writing under seal for the payment of money. The declaration was in the usual form. The defendant pleaded in bar that the note was given for a sum of money, the payment of which was secured by a mortgage upon lands, and that the plaintiff had prosecuted a scire facias upon the mortgage, under the statute, and obtained a judgment thereon. To this plea the plaintiff demurred. The case was. certified from the supreme court of Stark county, to be decided upon the point presented by the demurrer.
1Opinion of the Court
By the Court :
The counsel for the plaintiff seems to suppose that the action of assumpsit, debt or covenant; the action of ejectment to take possession of the mortgaged premises; and the bill in chancery to foreclose the equity of redemption, were all concurrent remedies at the common law; and because more than one of these *remedies might be pursued at the same time that the statute remedy, by scire facias, may be pursued with them. But this is a mistake. The action of assumpsit debt, or covenant, is resorted to for the recovery of the money due on the obligation. The action of ejectment is…
2Cited by2 opinions
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- Linduff v. Steubenville & Richmond Plankroad Co.Ohio Supreme Court · 1863