author: Read, J. Birchard, C. J.,

text:
    *Foster M. Follett v. Francis Hall and others.
    A mortgage handed in for record on the first day of the term of court, hut before the court actually convenes, will prevail against the lien of a judgment recovered at the same term.
    This is a bill of review, reserved in the county of Erie.
    The material facts are these: Hall and wife executed a mortgage upon a certain lot of ground in Sandusky city, to Oran Follett, who assigned the same to complainant, to secure the payment of two promissory notes given for the payment of $698. The mortgage bears date June 2, 1841, and was presented for record on June 3, 1841, at eight o’clock a. m.
    At the June term of the court of common pleas within and for the county of Erie, Farwell and Higgins, administrators of J. W. Ransom, recovered a judgment against Hall, for something over $800, and levied execution upon the lot mortgaged to Follett. The term of the court at which this judgment was rendered, convened on the same day, at ten o’clock a. m., on which said mortgage was presented for record. The Supreme Court held that the judgment had the preferable lien. This is assigned for error, among others, and is the only one considered by the court.
    Parish & Saddler, for complainants, submitted the following authorities:
    2 Stark. Ev. 787, and notes; 3 Burr. 1434; Wright, 325; 7 Ohio, 69 ; 3 Bl. Com. 43 ; 3 Burr. 1243; 1 Cow. 592 ; Cowp. 714; 4 Greenl. 298 ; Story on Bills, 329; Ib. on Pr. Notes, 236 ; 1 Pick. 485; 7 J. J. Marsh. 202; 1 Blackf. 392; 9 Cranch, 104; 4 New Hamp. 267; 6 Tenn. 224; 3 Ib. 623; 3 United States Dig. 518; 6 Cow. 659; 11 Mass. 204; 15 Ib. 193; Daw Rep. Jan. 1844, p. 392.
    *L. S. Beecher, for the defendants, presented the following authorities:
    8 Ohio, 396; 14 Ib. 428, 514; 1 Ohio Cond. 254; 6 Ohio, 156; 14 Ib. 514; 5 Mass. 197.
   Read, J.

The simple question in this case is, which had the

preferable lien, the judgment or mortgage. It is contended that the judgment lien, taking effect from the first day of the term, includes the entire day, upon the principle that a day in law is not divisible, and is therefore older and superior to that of the mortgage. The statute provides that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against the debtor from the first day of the term at which judgment shall be rendered. Mortgages take effect, and have preference, from the time the same are delivered to the recorder of the proper county, to be by him entered on record. If the judgment lien attaches from midnight, on the day the term of court commenced, it is older and better than that of the mortgage; but if the judgment lien attaches only from the time the court actually convened its session on the first day of its term, then the mortgage lien is older and must prevail. The word day, in law, embraces the entire day; but that a day in law is not divisible, is a mere fiction, only observed for the purposes of justice, and never adhered to when it would work mischief. When rights attach from the order of courts, the event must be regarded, and not the name of that fraction of time called a day. From what time does the statute intend the judgment lien to attach? From the first day of the term, would exclude the first day, and the judgment lien would only attach with the commencement of the second day. If this construction were permitted, it would allow a lien to attach superior to that of the judgment, even after judgment had been rendered. If a debtor, in the forepart of the first day of the term, should have judgment rendered against him, he might dispose of his whole lands and tenements, in the afterpart of the day, so as to put them beyond the reach of execution. This may *be done now, after suit brought, if before the term at which judgment shall be rendered. The object of the law undoubtedly was, to prevent men from disposing of their lands and tenements, after judgment was rendered against them, as the temptation would be stronger to do so than before judgment, and as most litigants have some hopes of success up to that time. But if the lien only attached from the time of the judgment, in several suits against the same person, that first in order upon the docket would have the advantage. It is, therefore, provided that all judgments rendered at the same term, shall attach as liens from the same time. This puts them upon an equality. The term, in this respect, is regarded as one day. Looking, then, to the object of the law, wo make the word from inclusive, which in its usual signification is exclusive. It is necessary to give the word from this interpretation, in order that judgment liens should attach from the beginning of the term. The object of the legislature undoubtedly was, that all judgments should attach as liens from the beginning of the term at which they were rendered. It can not be presumed that judgments were intended to attach as'liens before the term commenced. At what time, then, does a term of court begin ? It can not be said that a term of court commences before the judges authorized to hold court have convened. There can be no term of court, unless there is a court. To fix a time by law to hold court, does not make a court. If judgments attach only as liens from the beginning of the term of court, they attach from the time on the first day of the term at which the court was duly organized and opened. A majority of the court hold this to be the true construction of tho statute, giving judgment liens. Upon this construction, the mortgage is the older, and therefore the better lien. It is not pretended that any injustice is worked by this construction, because the equity of the mortgage is equal to that of the judgment, and being older, is in fact better; but that it violates the express words of the statute. But if we ^looked to the words only, and not the object of the statute, it-might well be held that the judgment lien only commenced with the second day of the term, the word “/rom” excluding the first. If wo may include a day which the words of the statute exclude, to carry out the object of the law, wo see no reason why we may not exclude a part of a day to effect the same object, especially if right and justice seem to require it.

It may be said, that to permit parties to dispose of, or incumber their property on tho day court begins, but before it actually convenes,, opens a door to fraud. This may now be done up to tho first day, and the construction we give to the statute affords very little further opportunity. But it must be remembered, that a fraudulent disposition of property will not avail against a judgment. With the subject of fraud we have now nothing to do. We are merely attempting to fix tho time at which judgment liens attach under the statute. A judgment lien is not better, and should not prevail against other liens, upon the ground that it is of superior dignity. There is no equity which requires that we should endeavor to extend to it an advantage over other liens honestly acquired. In the present case, there is an honest effort among creditors to secure their debts. Tho one takes a mortgage before the day on which court commences, and hands it in for record on the first day of the term, but before court commences; the other, some days after, but during the same term, recovers a judgment. Now, it is just as equitable that the one should be paid as the other. The mortgage is first in point of timo, and therefore better in equity and law, unless a hard statutory provision deprives it of this advantage. It is claimed that the statute deprives the mortgagee of his rights, and confers them upon the judgment creditor, not upon any principle of equity, but in adherence to the maxim, that the law knows no fractions of a day. But it is equally true, that fiction in law should never be permitted to work a wrong, and the construction %e have given to the statute seems to be warranted by its object and intent, and certainly conforms to the principles of justice and right.

The demurrer is overruled, and the decree heretofore rendered in this case reversed.

Birchard, C. J.,

dissenting. This case presents the naked question, whether a judgment rendered in a cause duly pending, shall operate as a lien on real estate, situate within the county, from the first day of the term at which it is rendered, including the first day, as fixed by law.

It is with regret that I find myself differing from the majority of the court at any time. Their opinions demand my respect. Yet however anxious I may be to come to any particular conclusion, I can not do it as a matter of choice.

I believe the decision just announced is unsound. The late learned chief judge who was with me when the case was originally decided, was also at the last session of this court after ful] argument, sincerely and advisedly of the same opinion. In stating the reasons which have operated upon my mind, I desire it to be understood that the doctrine is admitted that parts of days, may, in a proper case, be noticed for the prevention of injustice, nor do I understand that there is any difference between me and my brethren, as to the true meaning of the statute relating to mortgages.

We all hold, since the decision in Stansell v. Roberts, that a mortgage has no effect; that it is like an unexecuted contract, until it is filed with the recorder of the county for record. Such is the effect of the statute relating to mortgages. Again, we all agree that since the enactment of the statute, fixing the liens of judgmeats at law (many years older than the mortgage act), the courts and the bar have considered that the judgment lien took effect so as to include the first day of the term at which the judgment may have been rendered; that interest has over been computed to and from *that day. We know of no conflicting decision and there is no disagreement on this point.

Now with these facts and premises, upon which there is no division of opinion, I can not conceive that the lien of this judgment is junior to the lion of the mortgage. It does seem to follow that the first is some eight hours older than the latter. Both are legal liens. Both stand upon their respective legal rights, and both depend upon positive enactments which no court ought to gainsay.

This is not a case where a mere legal fiction is attempted to be interposed to defeat a prior equitj1'. It is a case where an older legal right is given to a bona fide judgment by a positive statute in express terms, and to which all the cases, cited to prove that a day may be divided to prevent a legal fiction from working injustice, are either wholly inapplicable, or they prove, by strong analogy, the unsoundness of the application which has just been made of them.

Adjudicated cases have been cited also to prove that a lien attaching at a particular hour of a day, shall be preferred to a lion attaching of the day generally. Admitting the soundness of these decisions and applying correctly the principle doducible from them, and the mortgage lien must yield, because the judgment lien took effect on the first hour of the term of the court, and the mortgage on the eighth hour of the same term. These cases sustain my views.

The terms of the courts are matters of law, of which all the people of the state are bound to take notice. To learn when they commence, the statute only need be looked to. The legislature intended to leave no room for dispute here. But the hour when the court may have actually commenced its session is very uncertain. It may have been at one o’clock in the morning, or at eleven o’clock at night, or at any intermediate hour. In many counties the records will only show that the terms of the courts commenced on the days prescribed by law, without any mention of the hour of the day at which the judges and officers convened. Is it so, then, that the party taking a judgment, at a term when no *court was convened until the afternoon of the first day, or perhaps the second or third day of the term, is liable to be defeated by deeds and contracts entered into after the time fixed by statute for the beginning of the term ? Can the judgment creditor make no levy with safety upon the real estate of his creditor, without first iaquiring of the clerk, constable, juror, or bystander, at what hour the sheriff may have proclaimed the opening of the court? Must he litigate this uncertain fact with any and every mortgagee, vendee, and grantee of the judgment debtor, and prevail in settling the disputed hour in his favor, or submit to have his creditor’s real estate swept away from him by a conveyance, mortgago, contract, or other claim entered into at one in the afternoon, because the court did not happen to convene till the hour of two? If a ci’oditor can bo defeated on execution in this way under our law, it is a new thing, and contrary to all our former impressions and all the practice of members of the bar for many years. This question is of too serious import to be passed over lightly, and without a dissent. It should not be treated as a legal fiction in the way of justice.

The opportunities of embarrassing creditors in the legal pursuit of their honest demands, have heretofore been sufficiently numerous. The means of committing fraud have ever been sufficiently ample. I can not but believe that a new door for gross fraud, and difficult of detection, will be needlessly opened by the rule now established, and that it will be hereafter somewhat improved, to the prejudice of the morals, the peace, and of the best interests of the public generally, as well as to the injury of individual judgment creditors. For these, and the reasons alluded to by counsel, and for other reasons that might be given, it is out of my power to concur in reversing the decree of this court, which was made upon the circuit, and made, too, deliberately, after full argument.

It may be hard for this mortgagee to lose the benefit of his security. But a hard case is a poor excuse for establishing a bad precedent. It is merely saving one man from misfortune, by visiting evils upon the whole community.

*1 do not desire to dwell long upon this subject. Yet there is one other view of the case which has force with me.» The entire usage of the state to the present time has been in accordance with the views that I have stated.

Whore this change of construction (for it is in effect that) of an old statute, will stop, or to what extent it may operate to defeat titles acquired under sales upon execution, no one can easily foresee. That its effect will be disastrous in some cases is not to be doubted. To guard against any disturbance of rights fairly acquired, and in accordance with the long-continued and general practice of those learned in the law, I would adhere to the old rules with tenacity, and yield them only when forced by reasons such as could not be resisted.


source: Caselaw Access Project

author: Hitohcook, J.

license: Public Domain

text:
    Kemp and Bucket v. John Walker and others.
    The delivery of a deed to the grantee after the same has been recorded is a good delivery, and the deed need not again be recorded.
    Whether the delivery of a deed to the recorder for record by the grantor is of itself a good delivery, quaere.
    This is a case in chancery, reserved in Seneca county
    The papers are voluminous, hut all the facts bearing upon the points decided, are set forth in the opinion of the court.
    Rawson & Pennington, for complainants.
    Hall & Stem, for defendants.
   Hitohcook, J.

The original bill in this case was filed in the name of Jarvis Kemp and Daniel Buckey, against John Walker, and Elizabeth, his wife, to foreclose a mortgage, and was filed on May 12,1842. The mortgage, which is made a part of the bill, purports to convey lot No. *11, in the town of Tiffin, in Seneca county, to complainants, as security for the payment of a note of $1,856.24, and hears date June 5, 1837. This deed appears to have been regularly executed by John Walker and wife, and was recorded on the 15th day of the same month.

In May, 1842, John Walker filed his petition in the district court of the United States, for the district of Ohio, for the benefit of-the bankrupt law. and such proceedings were had, that, on the 24th day of October of the same year, he received a certificate, discharging him from the debts owing by him at the time of filing the petition. Lewis Davis, the assignee in bankruptcy of Walker, offered at public sale, the interest of said Walker in said lot No. 11, and the same was purchased by one Luther A. Hall, for himself and Joseph Walker.

On November 9, 1843, the complainants filed an amended bill, setting forth a mistake in the original bill, in the name of one of the complainants—the name of Jarvis Kemp having boon inserted instead of Lewis Kemp—and by this amended bill, the said Lewis Davis and Luther A. Hall wore made additional defendants. The prayer was the same as in the original bill, that the mortgaged premises might be sold for the payment of the mortgage debt.

In February, 1844, this bill was answered by the defendants, Walker, Hall, and Davis. Walker admitted his indebtedness to complainants, and the execution of the mortgage, but insisted that the same had not been delivered, and was therefore inoperative. He stated further, that as collateral security for said indebtedness, he had transferred to complainants a note against Joseph Walker for 81,000, which had boon collected by complainants. That this transfer was made under an agreement of complainants, to assist him by furnishing him with merchandise with which to carry on business.- That the complainants had refused to comply with this agreement, and therefore were not entitled to the benefit of this 81,000.

^Tho defendants, Hall and Davis, insisted, in their answers, that at the time of the execution of the mortgage, Walker was in failing circumstances; that the mortgage was made without the knowledge of the complainants, and with the intent to defraud creditors, and was therefore void. They further insisted that the mortgage was never in fact delivered to the mortgagees, and was therefore inoperative.

During the pendency of the suit in the court of common pleas, the mortgaged premises were sold under an interlocutory decree of that court, and for a sum much less than that due upon the mortgage.

In this state of the case, two questions are presented for the consideration of the court: first, was the mortgage in controversy executed for the purpose of defrauding creditors, and therefore void ? and second, was the same instrument void for want of delivery?

1. Was the mortgage made for the purpose of defrauding creditors ?

There can be no doubt, from the testimony in the case, that at tbe time of the execution of this instrument, John Walker was very much embarrassed in his circumstances, and hoplessly insolvent. It was not in his power to pay his debts. _ It is equally certain that he was at the same timo justly indebted to the complainants, and that this mortgage was executed to secure the payment of that indebtedness, in part or in whole. It presents the common case of the preference of one of many creditors by a debtor. It was not a conveyance made in trust for the use of a creditor’, and made in contemplation of insolvency, which, under the statute, would inure to the benefit of all tbe creditors, but a conveyance to the creditor himself, and under such circumstances, can not be considered fraudulent and void.

2. Is the deed void for want of delivery?

It is undoubtedly true that no interest can bo taken under a deed- until the same is delivered. It is the delivery which gives the instrument force and effect. What will ^amount to, or be construed as a delivery, is sometimes a question of difficulty. But in this case there is no difficulty on this account. The facts are these: The complainants are residents of the State of Maryland. The deed was executed on June 5, 1837, and not delivered to the grantees; but on the 15th day of the same month, delivered to the recorder of the county for record. If the deed had remained in the recorder’s office until the time of tbe filing of this bill, and had there been intervening liens created by contract or judgment, there might perhaps have been some question as to the sufficiency of this delivery. But the proofs show that in May or June of the year 1838, John Walker, the mortgagor, went with Komp, one of the mortgagees, to the office of the recorder of the county, and directed the record or to deliver the deed to Komp, which was accordingly done. Here, then, was an actual delivery to the mortgagee himself, and from this time the deed must take effect, whether it would have taken effect from the delivery to the recorder or not. Having been once recorded, it was not necessary that it should be recorded again.

It is clear, in the opinion of the court, that the complainants are entitled to have their debt satisfied, so far as it can be done from fho avails of the mortgaged premises.

It would seem that here should have been an end of this ease. But the complainants, on June 29, 1844, filed what is called a second amended bill. This amendment is in the form of a creditor’s bill, seeking to obtain satisfaction of whatever balance may be found due to complainants, from the credits of the defendant, Walker, after exhausting the mortgage security. It is based upon the assumption that the certificate in bankruptcy of Walker was fraudulently procured. Several new defendants are made, most or all of whom have answered, and testimony has been taken. It does not seem to the court that this matter is properly brought forward in the manner in which it is presented. It is the proper subject for an original bill, rather than for an amendment to an original bill seeking to foreclose *a mortgage. We have, however, looked into the evidence, and have not been able to discover the fraud of which complaint is made.

Upon the whole case, the complainants are entitled to a decree, as before stated, to have the fund derived from the mortgaged premises appropriated toward the payment of their debt, the cost accruing upon the original and first amended bill, up to the time of the decree in the court of common pleas, first having been paid from said fund. The costs in the court of common pleas upon the second amended bill, and all the costs in this court, must be paid by the complainants.


author: Hitchcock, J.

text:
    Suydam, Reed & Co. v. John Walker, Kemp & Buckey, and others.
    Wliere a certificate in bankruptcy is interposed as a defense to a pre-existing debt, it may be invalidated by proving fraud in its procurement.
    This is a bill in chancery, reserved in Seneca county.
    The facts of the case are stated in the opinion of the court.
   Hitchcock, J.

This is a creditor’s bill filed in the court of common pleas of Seneca county, on April 1, 1844. The complainants arc judgment creditors of John Walker, having recovered judgments against him in the same court of common pleas in 1838. They seek "to 'obtain satisfaction of these judgments by the sale of lot No. 11, in Tiffin, which had been mortgaged to the defendants, Kemp & Buckoy, in 1837. This mortgage, it is charged by the complainants, was made voluntarily by John Walker, and with a view to delay and defraud his creditors, and they insist that it is therefore, as to them, void. They furthor *seek to obtain satisfaction from a debt due from tho defendant, Shawhan, to Walker, which debt, if any existed, accrued subsequent to tho application of Walker for the benefit of the bankrupt law. Tho bill sets foi’th that Walker, in May, 1842, petitioned for the benefit of this law, and that such proceedings were had, that, in October following, he obtained a certificate discharging him from the payment of all debts due from him at the time of filing his petition. But it is charged that the certificate was obtained by fraudulent practices which are set forth, and was therefore void.

To this bill the defendants, John Walker, Joseph Walker, and Luther A. Hall, filed a demurrer, thereby raising the question, whether a decree in bankruptcy would be collaterally impeached as attempted, by the bill, or whether it must remain obligatory until impeached or set aside in the court where it was rendered.

The court of common pleas overruled this demurrer, and these defendants, together with the other defendant in the case, subsequently answered, some of them at great length, denying the fraud charged in the bill. '

The validity of the mortgage to Kemp & Buckey seems to be admitted in the argument of counsel, and nothing remains but to inquire whether the certificate in bankrupty of Walker was fraudulently obtained; and if so, whether it can be impeached’ in the manner proposed in the present case.

The circumstances which the complainants rely upon to prove fraud, are connected with the mortgage of Kemp & Buckey. This mortgage, which was upon lot No. 11, in Tiffin, was executed in 1837. In tho month of May, 1838, Walker deposited with Kemp & Buckey a note in his favor for $1,000, against Joseph Walker. This note was deposited as collateral security upon the same debt, to secure which the mortgage had been executed. Upon the lot was a dwelling-house and other buildings, and Walker continued in possession of the same up to the time of filing his petition in the district court. Subsequent to this period, *he rented the same for one year to the defendant, Mason, at a rent of six dollars per month. In his schedule, no notice was taken of the debt due from him to Kemp & Buckey, of the deposit of the $1,000 note, nor of the mortgage. It is insisted by complainants that these matters were fraudulently kept from the schedule, in order that Walker might retain the property in his own possession, and enjoy the donefil of it, to the injury of his creditors. Had there been no debt in fact due from Walker to Kemp & Buckey, and had the mortgagobeen fraudulent, it would have furnished strong^ presumptive, if not conclusive proof, of an improper motive on the part of Walkor, in withholding these things from the schedule. But the debt of Kemp & Buckey was a valid, subsisting debt, and the mortgage was properly executed three years before the proceedings in bankruptcy. The $1,000 note was deposited as additional security two years before these proceedings. All presumptions of a fraudulent combination between Walkor and Kemp & Buckey are therefore removed.

We have carefully examined the testimony to ascertain, if possible, whether there was, on the part of Walker, any fraudulent intent in withholding those things from his schedule, but we can discover none. If the testimony on the part of Walker can he credited, it is apparent that he gave a full account of all these matters to his lawyer who made out his papers. On his part there was no concealment. Through the inadvertence or mistake of this lawyer, they did not appear upon tho schedule. So soon as this fact came to tho knowledge of Walker, he did all he could have done to remedy the defect so far as the interest of creditors was concerned. He notified the assignee, and all his interest in lot No. 11 was sold at public auction by that assignee. Complainants suppose that there are some evidences of fraud in tho sale itself; hut we can discover none. True, public proclamation was made that the lot would he sold under the incumbrance of the mortgage, and this was right. The mortgage was not affected by tho proceedings in bankruptcy. *And it seems, from the papers in tho case, that the entire property when sold, in consequence of a proceeding upon tho mortgage, was not sufficient to satisfy the mortgage debt. It ought to be observed, that although Walkor rented the lot to Mason, as before stated, ho declined to receive any part of the rent.

Upon a full consideration of all the evidence in the case, and it is quile voluminous, tho court is satisfied that there is nothing to impeach tho certificate in bankruptcy.

Such being the opinion of the court, it is unnecessary to determine whether such certificate can be invalidated in the manner proposed in the present case. We see no objection, however, to such course of proceeding. If tho bankruptcy be fraudulent, the certificate is unavailing, and if pleaded to an -action for the recovery of a pre-existing debt, might be defeated by a replication setting forth the fraud. 2 How. 202, 209; 1 Denio, 75, 332, 519.

E. Lane and Parish & Saddler, for complainants.

Watson & Stem, for defendants.

Bill dismissed at complainants’ costs.


text:
    Henrietta Frische v. Henry Kramer’s Lessee.
    A purchaser at sheriff’s sale, under an order for the sale of mortgaged premises, is invested with the interests of the mortgagee in the land ; and, so far as the land is concerned, is subrogated to all the rights of the mortgagee.
    As between mortgagor and mortgagee, and those claiming under them, after condition broken the estate becomes absolute in the mortgagee, subject, however, to be redeemed at any time before foreclosure.
    A purchaser from the mortgagor, whose purchase was made subsequent to the date of the mortgage, can not maintain ejectment against the purchaser at sheriff’s sale, although such subsequent purchaser was not made a party to the proceedings in chancery. But he may have a bill to redeem.
    This is a writ of error, directed to the superior court of Cincinnati.
    *Tho original action was ejectment for the premises in controversy, commenced by the defendant in error in the superior court of Cincinnati. On trial to a jury, a verdict was returned for tho plaintiff below. Upon the return of the verdict, the defendant below moved for a new trial, which was overruled by the court, and judgment entered for the then plaintiff.
    To reverse this judgment, this writ of error is prosecuted.
    On the trial of the case, a bill of exceptions was allowed by the court, which exhibits, in substance, the following facts :
    On November 22, 1841, the former owner of the premises in controversy (John B. Germain and wife), conveyed the same by mortgage in feo, duly executed and acknowledged, to one Anthony Mousch, conditioned for the payment of $300, and recorded on November 26, 1841. This mortgage was assigned by Mousch to Franz Ratterman, and on October 25, 1842, after forfeiture, a bill for a foreclosure and sale was filed by Ratterman, in the superior court of Cincinnati, against John B. Germain and wife, Anthony Mousch, and Oliver Gray, and that, on January 26,1843, the court, after finding the sum of $330 to be due from said Germain, directed a decree to be entered for the sale of said lot. By virtue of said decree an order of sale was issued, returnable to July term, 1843, and a return thereon, of sale to David Boring, for $400, which sale was duly confirmed at the term of October, 1843, and a deed ordered and duly executed to Boring, who, on November 21, 1843, duly conveyed the lot to John Frische (since dead), the husband of tho tenant in possession. The defendant in error claims, under a deed from John B. Germain to Michael Germain, dated January 14, 1842, and recorded' on February 11, 1842, and from Michael Germain by derivative conveyances.
    On the trial of the cause in the court below, tho *counsel for the plaintiff in error asked the court to instruct the jury:
    1. That as between the mortgagor and mortgagee and their assigns, the fee of the estate passed to the mortgagee at the time of the execution of the mortgage.
    2. That the grantee of Boring (the purchaser) is the' legal assignee of the mortgage, and can use it as a muniment of title.
    3. That after the condition broken, and the consequent forfeiture of a mortgage, the mortgagor or his grantees can not maintain an action of ejectment against the mortgagee and his assigns in possession, until payment of the mortgage debt.
    4. That if the deed under which the plaintiff claims title, was dated prior to filing the bill to foreclose, and subsequent to the registry of the mortgage, the lessor can only have an equitable interest, which can not be maintained in an action of ejectment.
    All of which instructions the court refused to give, but charged tho jury, “that as against tho defendant, in the court below, tho lessor of the plaintiff had the' legal estate,” and withdrew from the jury all the papers connected with the proceedings in chancery, offered as aforesaid, and all the deeds predicated thereon, and generally all the testimony offered by the defendant.
    Tho errors assigned are:
    1. That the court erred in refusing to instruct the jury, as requested by the plaintiff in error.

      2. That the court orrecl in withdrawing the testimony from jury.
    3. The general error.
    E. S. Haines, for plaintiff in error:
    In considering this question, we must recollect that we are in a court of law, investigating a legal, not an equitable right; and that, in remote times, if the mortgagor once *suffered tho condition to be broken, his estate was gone, and there could be no redemption. No principle of law is more firmly established than that, as between mortgagor and mortgagee, and those holding under them, the legal estate and right of possession are in the mortgagee and his assigns. It will probably be admitted by the counsel for tho defendant in error, that if the assignee, Rattorman, had purchased and taken possession of the lot in controversy, he could be evicted. But, as this plain proposition may be denied, I will refer to a few loading cases upon this point
    In the language of Judge Wilde, 17 Mass. 421: “ Tho ancient doctrine of tho common law, in respect to mortgages, is plain and well understood. By a conveyance by way of mortgage in foe, all the mortgagor’s title passes to the mortgagee, subject, however, to be defeated by the performance of the condition. But if tho condition be not strictly performed by the mortgagor, the estato of the mortgagee becomes absolute—no right remaining to tho mortgagor afterward to redeem.” 1 South. (N. J.) 268. So in 2 Black. Com. 158 : “ In case of failure to perform the condition, the mortgagee may enter and take possession, without possibility at law of being afterward evicted by the mortgagor.” 1 Powell on Morg. 4, 5. And this was tho law until courts of equity interfered,. and tho debtor was declared to possess what was significantly termed an “equity of redemption,” or a right to redeem the estate within a reasonable period, upon the payment of tho debt and all equitable charges, such as taxes, assessments, repairs, etc. Holcombe’s Eq. 186 ; 1 Powell, 4, n. a; 17 Mass. 422 ; 10 Paige, 70; 2 Ed w. G34. A deed of mortgage, at its early introduction, created an estato upon condition, which became absolute when the condition was not performed. An equity of redemption was not known until tho chancellor interfered and modified the rigor of the common law, by entertaining the bill to redeem, and it is said, in 1 Paige, 67 : “ That the system of chancery foreclosure originated in a desire to protect a landed aristocracy, rather than as proceeding from any fixed principle of ^equity.” It will be recollected that John B. Germain (the common source of title) conveyed the lot in question, subject to our mortgage, and could grant only his interest or ostate therein. We are informed in 2 Black. Com. 103, “ That an estate in lands, tenements, and hereditaments, signified such interest as the tenant hath therein.” What interest had John B. Germain in said lot, as between him and the mortgagee after the execution and recording of the said mortgage, on November 26, 1841? Clearly an equity of redemption only. And in this principle all the English and American authorities coincide. In 2 Cow. 301, Judge Southerland correctly says : “ The estate of the mortgagee is a legal interest,” and “the estate of the mortgagor an equitable interest.” Judge McLean, 2 McL. 448: “ The mortgagee has the legal title.” Justice Washington, 9 Wheat. 499 : A purchaser with notice can be in no better situation than the person from whom he derives his title, and is bound by the same equity which would affect his right. The mortgagor, after forfeiture, has no title at law, and none in equity but to redeem upon the terms of paying the debt and interest. His conveyance to a purchaser with notice, passes nothing but an equity of redemption, and the latter can, no moro than the mortgagor, assert that equity against the mortgagee, without paying the debt.
    In 2 Halst. 178, the court say, “ that it is a clear principle of law, that a mortgagee in possession can never be ousted by the mortgagor or any claiming under him, until the mortgage be paid.”
    In 13 Ves. 3, Lord Eldon remarks, “that a court of chancery will not take the possession from the mortgageo for the purpose of placing it even in the hands of the court, while a shilling is due.” In England, a mortgagor, after forfeiture, is considered only as a tenant at sufferance. Lord Tenterdon, 15 Eng. Com. Law, 336, says, “ the mortgagor is not in the situation of tenant at all, or, at all events, he is not more thari a tenant at sufferance, b;it in a peculiar character, and liable to be treated as tenant or trespasser, at the option of *the mortgagee,” 7 Eng. Com. Law, 204; and such is the language of all the English authorities. 3 East, 451; 1 D. & E. 383 ; Woodfall’s Land, and Ten. 83. There can be no doubt, in the words of Ch. J. Spencer, 20 Johns. 62, “that the mortgagee, as between him and the mortgagor, nas the right of entry, and is entitled to the possession of the promises,” and “ that the purchaser of an equity of redemption1 can aver no seizin or title against any other person than the mortgage debtor or his immediate tenant.” 10 Mass. 421, 425; 1 South. 269.
    But the defendant in error assumes that the sheriff’s deed is void, and conveys no title from an oversight in the draughtsman of the bill to foreclose; and that the plaintiff in ei’ror can not avail himself of the original mortgage in this action. The principle is too plain to be controverted, that a decree of foreclosure is conclusive only upon the parties to the suit. The estate of Kramer in the said lot was the equity of redemption as derived from Germain, and hold by him subject to the payment of the mortgage debt. Kramer, in taking a conveyance with notice of the mortgage, subjects himself to all the claims that existed in favor of Mousch, or his assigns, against Germain, and is precluded from setting up any title that could not have been asserted by Germain. If Kramer could hold his purchase discharged of the mortgage, it would enable the partios to commit a fraud. The plaintiff in error derives her title from a purchaser who pays his money on the faith of an order of court, under a judicial proceeding sanctioned and confirmed by the court, and application of the proceeds of the sale made by them. It would be a merited reproach to our jurisprudence, if, under those circumstances, a party could acquire what he never purchased—an estate beyond the power of Germain to dispose of,—an estate to be discharged by accident from the charge to which it was subjected. The principles of law are not of this variant “protean ” character. The plaintiff in error “ stands in the shoes ” of Ratterman, and as his legal assignee, is entitled to all his right, and may set up the *mortgage and protect her title under it—may use it as her shield and buckler. By her purchase from Loring (the purchaser under the decree), she comes into the place of all the parties to the bill, and holds by deed (through the sheriff) from them. The'purchaser has paid the amount adjudged to be duo Ratterman ; and he and those holding under him are to be considered as tho legal assigns of the mortgage, and may set it up as a muniment of title. No peculiar form of words is essential to the assignment of a mortgage. The assignment of the note is a good transfer of the mortgage. 4 Ohio, 318 ; 1 Blackf. 137. “ Whatever transfers the debt carries the estate with it.” 4 Burr. 978. Here is a solemn conveyance of the interest of all the parties to the suit, by the executive officer of the court, and assuredly passes all the interest of Ratterman in the mortgage. In 1 South. 273, “a purchaser at sheriff’s sale comes into the place of the defendant, and holds as if by deed from him, the sheriff being merely the agent of the law to transfer the title.” Den. v. Stockton, 7 Halst. 322, 324, was action brought to recover possession of mortgaged promises by the purchaser under the decree of foreclosure, who was also the mortgagor. The defense was, “that the proceedings in chancery and the sheriff’s sale were irregular and void,” etc. The court said, “ that by bidding at the sheriff’s sale, and accepting a deed, Jane Hart (the mortgagee) acknowledged no title inconsistent with her own. That act was intended to come in aid of her mortgage, and to perfect her title ; such would be the effect if the proceedings are valid. There is nothing in the nature of these proceedings which divests or suspends the legal title and right of possession until a sale take place. By that the estate of both the mortgagor and mortgagee are transferred to the purchaser.” Precisely as we claim in this case. That by the sale to David Loring, the estate of Germain and Ratterman was transferred to him, and thereby he is invested with their rights. It follows, therefore, that Doring having purchased the interest of Ratterman in the mortgaged premises, his grantee can protect *herself under the mortgage. In the language of the court, 10 Johns. 481, “although no regular foreclosure is shown, yet the assignee of the mortgagee, living in possession, may protect his possession under it.” And in 7 Cow. 13, 20, it is stated, “that a conveyance by a mortgagee as upon a statute foreclosure under the form of sale, even if the proceedings to foreclose be irregular, yet carries all the interest of tho mortgagee to the purchaser, as well in the debt as in the land mortgaged.” Such a deed operates as a good assignment of the mortgage, and the purchaser may claim as assignee. It is also there settled, “that the assignee of a mortgagee in possession will be protected against an action of ejectment by the mortgagor and all persons claiming under him, and this though his assignment was obtained upon a usurious consideration.” The only distinction in' this case is, that here, “the sheriff” (in the language of Washington, J., 3 Wash. 550,) “ is empowered by law to convey by deed to the purchaser, under an execution, all the right, title, interest, and estate of the defendant” (here the parties to the suit) “ as fully as the defendant himself, or an attorney empowered for that purpose by him, could have done. The officer in fact acts as such attorney, appointed for that purpose by law.' The purchase money is paid to the defendant in the execution, or is applied to his use in discharge of his debts, between whom and the purchaser the law raises a contract, in like manner as if the conveyance had been made by him. In tho case before the court, the interest of all parties to the suit passes through the agency of the sheriff to the purchaser, and enables him and his grantees to avail themselves of all securities.” Tho purchaser takes the interest of the mortgagee, and is invested with his rights. He is no stranger to the proceedings, but has connected himself with tho mortgage by the payment of the money, and is entitled to be subrogated in all his rights. Any departure from the principle would lead to great injustice, and the encouragement of a spirit of speculation in the purchase of equities of redemption utterly, worthless, except for the ^chance of some oversight on tho part of tho draughtsman. The defendant in error, by resorting to another forum, in the language of the court, 17 Mass. 427, “ has an adequate and convenient remedy, and well adapted to tho great end of all judicial proceedings, the doing of impartial justice to all parties.' For while on the one hand it moderates the rigor of the common law for the benefit of the mortgagor, it compels him on the other hand, to perform whatever equity and justice may require for the benefit of the piortgagee. It compels the mortgagor, when he applies for equity, to do equity. If ejectment would lie for the mortgagor upon payment of the debt, tho mortgagee would have no remedy to recover any disbursements made by him for repairs, for his right to demand them depends either upon the statute or the rules of equity. They are unknown to the common law, which considers tho mortgagee as the absolute owner.” The right of the defendant in error being then an equitable one merely, can only be enforced in chancery by a bill to redeem. This is the acknowledged law in England and the United States, and has been attempted to be shaken by a single case. 20 Wend. 260. As to that authority, the judge states that “the question of the invalidity of the sale was then presented for the first time. In that case the form of the master’s deed was peculiar in the granting clause, subject to all adverse claim to the same, and all chances and all risks of title,” and as his opinion may be considered one of first impression, it is not entitled to much weight. It is certainly,not sustained by reason or authority. It has been well remarked by Lord Eldon, “ that it is better that law should be certain than that every judge should speculate upon improvements in it;” and by Judge Southard, 1 South. 281, “that judge ought not to be led without authority that can not be resisted, into the establishment of principles unjust and unreasonable.” The cases cited by Judge Cowen, in favor of this novel proposition, are those in 3 Johns. 459, and others which only decide what we admit, “that the purchaser will take only a title as against the parties to the trust,” *and the reason assigned by Chancellor Kent for making all persons interested parties is, “that otherwise the mortgagor would take the surplus money.” This is the language of all those cases, “ that the decree of foreclosure is conclusive only upon the parties to the snit, and that upon a bill to redeem by other incumbrances, the purchaser is consoled in having his principal, interest, costs, taxes, etc., repaid him.” We have previously endeavored to show that the plaintiff in error is not to be treated as a stranger—that having deduced her title from Loring, the purchaser under the decree, she comes “into the seat” of the mortgagee by operation of law.
    James Riley, Morehead & G-Wynne, for defendant in error ;
    The mortgagor may sell and convey his title, both legal and equitable, to whom he pleases ; for he is the owner of the fee till foreclosure, subject to the right of the mortgagee to enter for breach of the condition, and pay himself out of the rents and profits, or to subject the land to sale for the payment of his demand. The purchaser from the mortgagor, therefore, takes the fee simple subject to the mortgagee’s lien, and only liable to be divested by the legal proceedings to enforce it at law by judgment and execution ; or in chancery by decree or sale. The plaintiff below, therefore, had the legal title, and, prima fade, the right to recover. Is that right taken away by the judicial proceedings ?
    1. If the mortgagee would divest the title of the mortgagor, or his grantee, by foreclosure proceedings, he must make the person holding that title a defendant; indeed, without that, the proceedings are a mere nullity, and do not in any manner affect the title, either of the mortgagor, or of the mortgagee himself. 20 Wend. 264; 9 Dana, 201; 10 Paige, 56.
    It is plain they do not affect the title of the mortgagor: for the court have obtained no jurisdiction over him. Indeed more; the complainant has not asked to have him *made a party to the foreclosure. A mere statement of this fact is sufficient. But see 10 Paige, 56; 5 Ib. 30; 6 Wend. 449, 453; 1 Dana, 278; 9 Ib. 201; 2 Blackf. 111, n. 1 Conn. 509; 1 Ohio, 101; 6 Ib. 44, 117, 535 ; 20 Wend. 264. There can be no presumption that one not named in the so-called foreclosure proceedings was made defendant, if his name does not occur in the record. 20 Wend. 265. If be were so named, he might show that he never was served, nor appeared; that he is not the person the judgment was rendered against which is sought to bo enforced. 6 Wend. 452; 1 Ohio, 100, 259; 2 Ib. 31, 334; 3 Ib. 44, 518; 7 Ib. 187, pt. 2; 12 Ib. 272.
    The distinction on which this action rests is stated in Story's Eq. PI, sec. 193. The proper parties defendant to a bill to foreclose are, all persons interested, who are to bo affected by the decree; all persons interested in the equity of redemption—all incumbrancers should be made parties, whether prior or subsequent; if such incumbrancers are not made parties, the decree does not bind them, and a decreo of sale would not. The prior incumbrancers are not bound, because their rights are paramount to the foreclosing party. Findlay v. Bank of the United States, 11 Wheat. 304; Delabare v. Norwood, 3 Swanst. 144; Shepherd v. Gruinnett, Ib. 151; Rose v. Page, 2 Simon, 471. There can not be a foreclosure where the mortgagee is not before the court. Powell Mort. 990, 991, n. a; Fell v. Brown, 2 Bro. 276; Polk v. Clinton, 12 Ves. 48, 59; Swift v. Edson, 5 Conn. 531. A mortgagor who has conveyed all his interest in the mortgaged premises can not sustain a bill to redeem; and if a mortgagee, who has assigned all his interest in the mortgage and mortgage debt, forecloses, the proceedings are a nullity. 2 Pick. 276; 5 Ib. 281; 24 Maine, 298; 9 Mass. 422; Powell Mort. 261, 262; 20 Wend. 260; 4 Dana, 232; 4 Hill, 175; 23 Maine, 25; 25 Ib. 392. Every foreclosure contains a redemption, and every redemption a foreclosure. If the mortgagor have nothing in the mortgaged premises, he can not redeem; and if the mortgagee, ^having nothing in the mortgage and mortgage debt, foreclose, it will be a nullity. There ■can be no foreclosure unless the mortgagor be before the court; .and incumbrancers are bound only as they are reached. It follows that if a junior mortgagee should foreclose without making .a senior mortgagee party, the senior mortgagee could eject the .purchaser at this junior foreclosure sale; and if tho mortgagor was not made party, he could eject the purchaser, having the par-. amount title, the fee; and the proceedings could not be used in evidence against him nor the sheriff’s'deed. John B. Germain had not one particle of interest in this land for months before the bill was filed against him, nor no one made defendant had one particle of interest in this land, and no one of the defendants could either redeem the mortgage or have it foreclosed against him so as to affect one particle in this title, acquired months before. 5 Conn. 531; 24 Maine, 298; 2 Pick. 276; 5 Ib. 281; 9 Mass. 422; Powell Mort. 261, 262; 20 Wend. 260; 4 Dana, 233; 4 Hill, 175; 23 Maine, 25; 25 Ib. 302. And as John B. Germain could neither redeem the mortgage, nor could the mortgage be foreclosed by filing a bill against him, having no interest in the mortgaged premises when the proceedings were commenced, David Loring stepping into the shoes of a man who could neither redeem nor foreclose the mortgage; neither could he, David Loring.
    2. As the foreclosure proceedings are no defense to this'action, the inquiry offers: can the tenant protect her possession by means of the mortgage ? That question must be answered in the negative. No person but the mortgagee or his assignee can set up the mortgage. 1 Ohio, 101; 2 Ib. 223-225; 20 Wend. 260; 4 Dana, 233; 4 Hill, 175 ; Doug. 631, 632; 2 Burr. 978, 979 ; 7 Johns. 282; 4 Ib. 43; 6 Ib. 290; 2 Ib. 380; 24 Maine, 198; 5 Halst. 158, 159; 1 South. 275; 2 Ib. 380; Adams Eject. 29, n. 3. “If the mortgage is to be set up, the mortgagee must join in the defense.” 1 Halst. 478; Esp. 783; 3 Term, 783; 3 Burr. 1293, 1297; Barnes, 193, 194; 8 Term, 645; Sel. *Prac. 1064; Adams Eject. 260; Comber. 209; Bull. N. P. 95.
    Having thrown out all the judicial proceedings, and shown that the defendant does not connect herself with the mortgage, the plaintiff below was entitled to recover the lands.
   Hitchcock, J.

This case presents a new question for the consideration of the court, which is this: Can the purchaser of the equity of redemption in mortgaged premises recover those premises in ejectment against one who has purchased the same under a decree foreclosing the equity, and directing the land to be sold, merely because that purchaser was not made party defendant in the bill to foreclose? Or, in other words, does the sale under such decree remove the incumbrance from the lands, and vest a perfect title in the purchaser of the equity of redemption ?

This is not, it is true, tho precise form of the question, but it is the substance; and, according to the decision of the superior court, the defendant in error, who derives title from the mortgagor through a conveyance subsequent to the date of the mortgage, and for the satisfaction of which the premises had been sold under a decree of a court of competent jurisdiction, recovers those promises discharged of the incumbrance, and this because the purchaser at the sheriff’s sale was a stranger; for it seems to be admitted that had the mortgagee, or an assignee of the mortgagee, purchased, it would have been well, and this action could not have been sustained.

Is this right? It certainly does not appear to be in accordance with justice. But if the law is so, that law should be enforced. Although many authorities have been cited by counsel to sustain this judgment, yet the one principally relied upon, and which was undoubtedly received by the superior court as conclusive of the case, is the case of Watson et al. v. Spence, 20 Wend. 260. That was a case substantially like the one now before the court, and decided as the case was in the court below—that is, the result was *the same in both cases. There had been a foreclosure and sale to a stranger, the mortgagor having parted with his interest before the bill was filed, and his vendee not having been made a party. The court adopt a course of reasoning by which they are brought to the conclusion that tho proceedings in chancery were void as to the vendee of the mortgagor because he was not a party; and that inasmuch as he might have maintained ejectment before the foreclosure against a stranger, he could after the foreclosure—although that stranger is a purchaser under the chancery proceedings; that a purchaser in such case acquires no interest in the land, except as against the original mortgagor; that he has no privity with the mortgagee, and can not be treated as an assignee. It is admitted at the same time that if the mortgagee, or an assignee of tho mortgagee, had purchased, or was in possession, the plaintiff could not recover.

Although we have the highest respect for the court making this decision, yet we are not entirely satisfied with the reasoning adopted or the decision made.

In this state we hold, as is held in New York, that in mortgages the debt is the principal, the mortgage the incident. That by assignment of the debt the mortgage is transferred. That by the payment of the debt, it is satisfied. We hold,' too, that as to all the world except the mortgagee, the mortgagor has a legal estate in the land mortgaged—an interest which may be sold on execution. But we hold that, as between the mortgagor and mortgagee, and those holding under either or both, after condition broken, tho legal estate becomes absolute in the mortgagee, still subject however, to be redeemed upon the payment ,of the debt secured. And this right of redemption continues until the land is sold under a proceeding in chancery. After condition broken, the mortgagee may maintain ejectment for the land, against the mortgagor or any one claiming under him. If the mortgagee or his assignee go into possession, neither the mortgagor, nor any person under him, can disturb this possession. *After condition broken, then the mortgagee has an interest in the land—as between the parties to the mortgage, he has the legal interest. Having this legal interest, be may file his bill in chancery for a foreclosure, or for a decree ordering a sale of tho mortgaged prem-' ises. To this bill he must, or ought to make the mortgagor a party. And he ought further to make all persons parties who have acquired interests in the property, either anterior or posterior to tho date of his mortgage. But suppose he does not, and a decree passes, what is the consequence? Counsel for defendant in error contend that the proceedings are absolutely null and void. That a decree in chancery is absolutely void unless all persons who have an interest in the subject matter are made parties. For if it would be void in a case like the one under consideration for that cause, it must for the same cause be void in every case. But it is not so. If the court have jurisdiction, all parties before it will be bound by the decree. As to those not parties to the suit, not before the court, the decree does not affect them; their interests remain as they were. The mortgagee having filed his bill making the mortgagor a party, regardless of those to whom the mortgagor may have transferred the equity of redemption, obtains a decree, and the land is sold,—what interest passes by the sale ?

Counsel suppose, and such seems to have been the opinion of the court in New York, that nothing passes but the interest of the mortgagor, who is defendant in the suit, and as that mortgagor had no interest, therefore that nothing passes. But such is not the case. When the bill is filed, the legal title, as between parties and privies, is in the mortgagee. The object of the bill is, that this may be sold—the land itself, the legal title to which is in the complainant, and that it may be sold divested of any equity of redemption. And it seems clearly to tho court, that when it ia sold, the purchaser takes the interest, not only of the defendants in the case, but the interest of the mortgagee; and that he takes it divested of any right of redemption on the part of those who are parties to the proceeding. So far *as tho land is concerned, he is subrogated to all the rights of tho mortgagee. A junior vendee of the mortgagor, under such circumstances, can not recover in ejectment against the purchaser at the judicial sale, such purchaser being in possession.

It is said, however, that such vendee was not a party to the judicial proceeding, and therefore as to him the proceedings are void. True, his interests are not affected by tho decree and sale. Still, the court have jurisdiction of the subject matter and of the parties before it. The decree is not a nullity. Now, what were the rights of the junior vendee? As to the mortgagee and those claiming under him, he has, and never had, any other interest than a mere equity of redemption. That right still remains. He may have a bill to redeem, but he can not sustain an ejectment.

These principles being applied, how stands the case before the court? On November 22, 1841, John B. Germain and wife mortgaged the land in controversy to one Anthony Mousch, to secure the payment of $300. Mousch assigned this mortgage to Ratter-man. On January 14, 1842, the mortgagor convoyed the same premises, under tho incumbrance of the mortgage, to Michael Germain, under whom, by intermediate conveyances, the lessor of the defendant in error claims title. On October 25, 1842, and after forfeiture of the conditions of the mortgage, Ratterman filed his bill in chancery for a foreclosure, and for the sale of the mortgaged premises. To this bill John G. Germain, Anthony Mousch, and others were made defendants; but Kramer, tho lessor of the defendant in error, was not made a defendant. A decree was obtained, and the laud sold under an order of sale to one David Loring. This sale was confirmed and a deed made by the sheriff to Loring, who convoyed to John Frische, husband of the plaintiff in error. Frisehe died in possession. By this proceeding and sale, all the interests of those made parties to the bill became vested in Loring. But the interest of Kramer, he not being a party, was not affected. That interest, ^however, as it respects the mortgagee and those claiming under him, or in his right, is a mere right to redeem. He has it still, but he can not sustain an ejectment. Possibly, as against a mere stranger, an intruder, he might; but not as against him in whom is vested the right of the mortgagee.

There is another view of the case, which will equally show the error of the superior court. By our practice, the proceedings in chancery, which we sometimes denominate proceedings to foreclose an equity of redemption, are in fact, in the nature of proceedings in rem. The object is to procure, by a decree of the court, the sale of the mortgaged premises, and for no other purpose. In the case of Ratterman v. Germain and others, such was the object of the bill. And upon this bill the court decreed that the mortgaged premises should bo sold. They were sold pursuant to the decree, by the proper officer of the court. Under this sale, unless the proceedings were utterly and entirely void, the purchaser took these identical mortgaged premises, and could transmit them to others.

The superior court, in excluding from the jury the evidence offered by.the plaintiff in error, and in charging the jury, that as against the plaintiff the lessor of the defendant in error had the legal title, committed an error. The court erred too, in refusing the second, third, and fourth instructions requested by the plaintiff in error.

The judgment is reversed, with costs, and the case remanded for further proceedings-


author: Avert, J.

text:
    *John W. Place v. Charles Sweetzer and others.
    •Partnership goods may be levied upon under an execution against one of the partners, for his separate debt.
    The sale in such case may be restrained by injunction till the interest of the partner is ascertained.
    The interest of the partner is his share of the surplus, after all demands against the firm, including those of the individual partners, are paid.
    This is a bill in chancery, reserved in the county of Delaware.
    John W. Place, the complainant; Adam Wolf, and Abraham Wolf, were partners, carrying on mercantile business in Delaware county; and while they were so in partnership, Sweetzer, one of the defendants, having two judgments, in the court of common pleas of that county, against said Adam Wolf, amounting together to somewhat more than $1,400, and the defendant Cone having a judgment in the same court'for about $150, took out executions by virtue of which the sheriff levied upon the stock of goods of the firm, and took them into his possession. The complainant, then another of the partners, brought this bill, seeking to enjoin the judgment creditors from selling the partnership effects to satisfy the separate debt of one of the partners. There is a cross-bill also, filed by the judgment debtor, Adam Wolf, wherein he states, that he transferred to Sweetzer a certain quantity of pork and lard, which was to be sold and the proceeds thereof applied toward the payment of one of the judgments; that this pork and lard were sold, but the proceeds, through the neglect and misconduct of Sweetzer, were entirely lost, and not so ajtpliod; that Sweetzer ought to account for the amount of sales, and give a credit for it upon one of the executions.
    The cause comes on for hearing upon bill, cross-bill, answers, replication, and testimony.
    *T. W. Powell and S. Finch, for complainants, relied upon the following authorities:
    Nicholl v. Munsford, 4 Johns. Ch. 525; Moody v. Payne, 5 Johns. Ch. 548; Chapman v. Koops, 3 Bos. & Pul. 289; Parker v. Pister, 3 Bos. & Pul. 288; 4 Ves. 395; Carey on Part. 151; Shaver v. White, 6 Munf. 113; Wilbraham v. Snow, 2 Saund. 46, c. in notes; Johnson v. Evans, 40 Eng. C. L. 240 ; Haydon v. Haydon, 1 Salk. 392; Jockey v. Butler, 2 L. Raym. 871; Skipp v. Harwood, 2 Swanst. 586; 12 Wend. 131; 16 Johns. 106; 2 Ves. & Bea. 300; Burrell v. Acker, 23 Wend. 606; 1 Mad. Ch. 136; Gow on Part. 226-228; Barker v. Goodwin, 11 Ves. 78; Taylor v. Fields, 15 Ves. 559, in note; 1 Story’s Eq. Jur., sec. 678; Story on Part., sec. 264.
    The defendant, Charles Sweetzer, who appeared in person, presented these authorities :
    2 Johns. 468; 12 Wend. 131; 15 Johns. 179; 2 Hill, 595; 2 Dallas, 277; 7 Law Rep. 472; 2 Conn. 514; 2 Ver. 120; Collyer on Part. 473-478.
   Avert, J.

The first question arising in this case is, whether tho original bill, with its injunction, can bo sustained. This, of course, must depend upon the rights of a judgment creditor, having an execution against one of the partners for his separate debt.

The goods of the firm, being personal property, and held always* subject to levy under an execution at law against all the partners for a partnership debt, must be deemed to be held by the same title, and the share of each partner to be held likewise subject at law to levy, under an execution against him individually. But though this property may be seized and thus withdrawn from the debtor’s control, it does not necessarily follow that it must be sold also under the execution. If the sale could not bo restrained, great injustice *might very often be the consequence ; for in many, perhaps in most cases, neither the sheriff nor the debtor nor any other person could make known at tho sale what property the purchaser would take. The interest of the partner can not be ascertained, till all the partnership accounts are arranged; and it is well settled that this interest is a certain share of the surplus after all of the demands against the firm, including those of the partners individually, are paid. It is this share of the surplus only, which can be sold under the execution, and to secure a fair sale of it, the value must be known. This can be accomplished through the aid of a court of equity alone, where all the intricate affairs of a partnership may be examined and adjusted. A resort to this court, in cases like the present,-may become important to secure the rights, sometimes of judgment creditors, at other times of the debtor, and sometimes, as here, to secure the rights of other partners. We see no objection to allowing tho remedy in either case. The present complainant, when the levy was made, had at once a direct interest to bring the concerns of tho partnership to a close; to apply the effects of every description to the payment of the debts of the firm; and to prevent a sacrifice of the judgment debtor’s share, because by such a sacrifice his own share might be burdened. The complainant prays, that an account be taken between the parties, of the amount due by the firm ; that the same bo first paid out of tho property of the firm, and that complainant’s interest in the surplus be paid, before execution creditors bo permitted to assert their claim on the property and apply it to the payment of the separate debt of Adam Wolf. This prayer of the bill will be granted ; the accounts be sent to a master for examination and report, and the injunction in the meantime be continued.

The cross-bill will be dismissed, as the allegations are not sufficiently supported by the proof.


author: Birchard, C. J.

text:
    *Henderson W. Horton v. James Horner.
    A contract made in the State of New York for the payment of money in that state, the maker residing there at the time of its execution, is controlled hy the laws and affected by the statute of limitations of that state.
    This is a bill of review, reserved in the county of Lucasj brought to revei’se a decree rendered in bank, at its January term, 1846.
   Birchard, C. J.

-The facts of the original case sufficiently appear in the report, 14 Ohio, 437.

The decree was in general terms, finding the equity of the case with the respondent, and dismissing the bill.

Two causes are assigned for the reversal of that decree: .

1. Because the court held that the statutes of limitation so operate as to bar and extinguish complainant’s claim.

“ 2. Because the court found the equity of the case was with the defendant.”

The decree was so drawn, that in order to examine the second alleged cause of error, we have been compelled to re-examine the entire record. No fact was stated in the decree to have been found by the court. Under such circumstances, according to the usual practice of this court in such cases, the whole record and evidence have to bo reconsidered. The original bill set forth a contract of absolute sale by parol, with its terms, and sought a specific performance. This contract, in all its terms, was positively denied, and testimony was taken. On this controverted matter of fact the court wore not fully able to concur. Two members of the court thought the bill unsustained in the controverted matter, ono member thought otherwise, and another doubted. A reexamination has brought us to a unanimous opinion that the proof was wholly insufficient to ^sustain the bill. But one •witness testifies in a manner to support the bill. Against his oath is opposed the equally direct and positive oath of the answer. And every other fact and circumstance connected with the case, is as well reconcilable with the statements contained in the answer, as with the allegations of the bill. For this reason the original decree was correct, and ought to be affirmed,

The remaining, or first cause assigned for error, nowhere appears upon the record. The assignment is inartificial—is based upon the opinion of the court, and if the opinion were erroneous could not affect the decision; for in that aspect the utmost that could be said would be, that this court gave a bad reason for a correct decision.

The counsel who prepared this case, supposes such to have been the nature of the opinion, and has labored with his usual ability to convince us of an error in the construction given to the statute of limitations. We appreciate the effort, and in this case, as in every other, consider it an act of kindness on the part of members of the profession, to represent a question at an early day, that they may suppose has been passed upon without due reflection.

In applying, by analogy, the provision of the statute limiting actions at law, it was held, that the action of comjfiainant was barred by lapse of time. Was there error in holding this opinion ? A majority of the court still answer in the negative.

The facts are these: The contract (assuming that it ever existed) was made in New York, and the cause of action accrued six years and some days before the bill was filed. By the statute of New York, no suit could have been maintained in that state after six years. If sued there, the bar would have been complete. The respondent was a resident of Albany at the making of the contract, and has ever since resided in the same place. The assignor of complainant, Forsyth, has always had his domicile in Ohio; but at the making of the contract was also in Albany. By ^section 4 of the statute, Swan, 555, it is declared that all actions founded on a contract made between parties resident without this state at the time such contract was made, and which are barred by the laws of such state, shall be barred when brought in this state. Under this provision the action against respondent is barred, or there is no law that could ever reach the case and prevent an action from being maintained at any time within fifty years. It is not to be supposed, that the legislature intentionally meant that such a thing should happen ; and yet a technical construction of the term resident might bring us to such a conclusion. In general, the term residence implies the place of domicile, the place where a person has his home, and where he has gained a rcsi - donee. Sometimes it implies the place where a man temporarily resides, where he transacts business for a brief period. There is an obvious distinction between “ a person resident at the time,” and “ a person having gained a residence, or a settlement.” And in gathering the meaning of an act of legislation, the whole act must be taken together. The object to be attained must be considered, and if necessary to give force to it according to the true spirit and intention of the lawgiver, words having a general and a more limited signification may be enlarged or limited so as to meet the general object of the law. ¥o think the legislature intended to provide for a case like this, and that Forsyth, while in Albany, was a person “ resident without this state at the time such contract was made,” in the sense and within the meaning of those words as used in the statute, and as bearing upon the contract then made and there to be performed. True, he had a legal residence in Ohio at the same time. But it is not true that he was then actually resident in this state. Ho was non-resident, for the time, at the place of his legal residence. The courts of the locus contractus were always open to him; he knew where his debtor was to be found, and neglecting without cause to pursue Iris claim till after the laws'of that place barred the demand, he *has no right to complain when a court of equity pronounces it state.

Rathbone & Lane, for the complainant.

Young & Waite, for the defendant.

Demurrer sustained, and bill dismissed.