author: Bradbury, J.

text:
    The Mutual Aid Building and Loan Company v. Gashe, Assignee, et al.

      Lien of material-man — Sale of land — Title with vendor till full payment — Improvements by vendee — Lien affects vendee only— Legal transfer by vendor passes his right to grantee — Grantee may convey his right to mortgagee.

    1. Where, upon a sale of land, tor a price payable partly in hand, the balance in installments, the title remaining, in the vendor to be conveyed to the vendee upon full payment of the purchase price, the vendee is put into possession and proceeds to erect a building thereon, the lien of a material-man for material furnished for such building touches the interest of the vendee only. This interest is the value of the property to be conveyed, including any improvements placed thereon, less the unpaid purchase money.
    2. In such case the vendor’s right to be paid the balance of the purchase price, in ease of a judicial sale of the property, is paramount to the lien of a material-man; and if he, fora valuable consideration, before a judicial-sale of the property, conveys the legal title to another, the latter, thereby, becomes vested with all the interest and rights of his grantor, the original vendor, and by a mortgage, may convey to his mortgagee such interest and rights.
    3. If, after such conveyance by the original vendor, and mortgage made by the grantee, the property is sold at judicial sale, the lien of tne mortgagee upon the proceeds of the sale to the extent of the unpaid purchase money, and to that extent only, is superior to that of a material-man.
    4. The circumstance that the third person to whom the title was conveyed and by whom the mortgage was executed, had no actual pecuniary interest in the transaction but was a mere conduit for passing the title and interest of the original .vendor to the mortgagee, is immaterial.
    (Decided April 27, 1897.)
    Error to the Circuit Court of Lucas county.
    This cause was begun in the probate court of Lucas county by a petition filed therein, by William A. Gashe, assignee of the The Ohio Lumber and Manufacturing Co., an insolvent corporation, to obtain an order to sell certain real estate of the corporation, and an adjustment of the liens thereon in favor of the certain secured creditors. The cause was appealed to the court of common pleas and there tried. The trial court stating- separately its findings of fact and conclusions of law:
    “1. That said defendant, The Ohio Lumber and Manufacturing- Companj^, at and prior to June 29, 1893, was duly incorporated and organized and was then existing as a corporation of the state of Ohio, formed for the purpose of manufacturing, selling- and dealing in doors, sash, etc. * * * That on said date it duly made a general assignment to said William A. Gashe for the benefit of its creditors.
    “2. That at the time of making said assignment, the defendant, The Ohio Lumber and Manufacturing Company, was the owner of lots numbered 239, 240, 241, 242, 243, 244 and 245 in Ransom’s addition to the city of Toledo, Lucas county, Ohio, together with the improvements thereon, and the privileges, and appurtenances thereto belonging, subject nevertheless, to the several liens and incumbrances hereinafter stated; that prior to, and at the date of said assignment, all of said lots, together with the buildings, manufactory, and other improvements thereon, were used by said defendant,' The Ohio Lumber and Manufacturing Company, in prosecuting- its said business as a single and entire premises: to which finding- as to said lots having been used as a single and entire premises, the defendant, The Mutual Aid and Loan Company, duly excepted.
    “4. That at and prior to June 29, 1893, the defendant, The Shaw, Kendall & Company, was, and now is, a corporation duly organized and existing under, and by virtue of the laws of the state of Michigan; that there is due said defendant, from the defendant, The Ohio Lumber and Manufacturing Company, on account of materials furnished, to be used in the erection of said manufactory, as set forth in the first, second' and third causes of action, in the cross-petition of said defendant, The Shaw, .Kendall & Company, the sum of one thousand two hundred and fifty-one and 63-100 dollars ($1,251.63), with interest thereon from April 3, 1894, the first day of the present term of this court, and that to secure the same by a mechanic’s lien upon said lots numbers 239, 240, 241, 242, 243, 244 and 245 in Ransom’s addition to the city of Toledo, Lucas county, Ohio, and the saich manufactor j and other improvements upon said lots, said The Shaw, Kendall & Company, has fully complied with the requirements of the laws of Ohio, as in its cross-petition alleged, by reason whereof, said defendants has a valid lien upon said lots of land, and the improvements thereon to secure its said claim.
    £ ‘That said lien, concurrently with the lien hereinafter found in favor of said defendant, Henry P. Tobey, is entitled, to priority against said property, and the proceeds thereof, next in order after the payment of the costs herein, and the lien of said taxes and assessments thereon, to which finding that said company has any lien whatever upon said lots or the proceeds thereof, the defendant, The Mutual Aid Building and Loan Company, duly excepted.
    “5. That there is due to the defendant, Henry P. Tobey, from the defendant, The Ohio Lumber and Manufacturing Company, on account of materials furnished, as set forth in the cross petition of said defendant, Henry P. Tobey, the sum of three hundred and six and 4-100 dollars ($306.04), with interest thereon from April 3, 1894, the first day of the present term of this court, and that to secure the same, a mechanic’s lien was by .said defendant duly taken upon said lots numbers 239,240, 241, 242, 243, 244 and 245 in Ransom’s addition to the city of Toledo, Lucas county, Ohio, by reason whereof said defendant acquired and has a lien upon said premises and the improvements thereon.
    ‘ ‘That said lien, concurrently with the lien hereinabove found in favor of said defendant, The Shaw, Kendall and Company, is entitled to priority against said property, and the proceeds thereof, next in order after the payment of the costs herein, and the lien of said taxes and assessments thereon ; to which finding’ that said defendant, Henry P. Tobey, has any lien whatever upon said lots or the proceeds thereof, the defendant, The Mutual Aid Building’ and Loan Company, duly excepted.
    “6. That there is due to the defendant, Arbuckle, Ryan and Company, a copartnership doing business in the state of Ohio, from the defendant, The Ohio Lumber and Manufacturing Company, on account of engine, boiler, Duplex pump, with heater and stone for engine, and the fittings and connections belonging to said engine, boiler and pump, being the materials described, andfurnished said The Ohio Lumbering and Manufacturing Company for its factory, as set forth in the cross-petition of said defendant, Arbuckle, Ryan and Company, the sum of one thousand sixty-eight and 81-100 dollars ($1,068.81), with interest thereon from April 3, 1894, the first day of the present term of this court, and that to secure the same, mechanic’s lien was by said defendant duly taken upon said lots numbers 239, 240, 241, 242, 243, 244 and 245 in Ransom’s addition to the city of Toledo, Lucas county, Ohio, by reason wnereof said defendant acquired, and has a lien upon said premises and the improvements thereon; that on May 27, 1893, said defendant, by written agreement with the defendant, The Mutual Aid Building and Loan Company, as to said defendant, waived the priority of its said lien as to said real estate, but not as to said boiler, engine, pump, heater and stone, and the fittings and connections thereof, which by the further terms of said agreement were not to become realty until paid for, to which finding that said Arbuekle, Ryan and Company have any mechanic’s lien upon said premises. The Mutual Aid Building & Loan Company duly excepted.
    ' “And it appearing to the court, and the court finding that all of said property has been sold, and the proceeds, thereof, now in the hands of said William A. Gashe, assignee as aforesaid, exclusive of the proceeds of the sale of said engine and boiler, with their fittings and connections, are sufficient in amount to fully satisfy said mechanic’s liens hereinabove found in favor of the defendants, The Shaw, Kendall and Company, and Henry P. Tobey, respectively, the court finds that said defendant Arbuekle, Ryan and Company, to the extent of its said claim, has the first and best lien upon said engine and boiler, with their fittings and connection, and the proceeds arising from the sale thereof. To which finding- the Mutual Aid Building & Loan Company duly excepted.
    “7. That prior to and upon May 17, 1893, the defendant, The Mutual Aid Building and Loan Company was, and now is, a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, providing for the creation of building and loan companies; that there is due from said defendant, The Ohio Lumber and Manufacturing Company to the defendant, The Mutual Aid Building and Loan Company, upon the obligation and mortgage set forth in the cross-petition herein the sum of five thousand three hundred and fifty-six dollars ($5,356.00), with interest at six per cent, from April 3, 1894, the first day of the present term of this court, on seventy-five dollars ($75.00) of said sum, and that there will become due said company upon such obligation and mortgage, the further sum of nine dollars ($9.00), each week from and after April 3, 1894, and until the full balance of five thousand two hundred and eighty-one dollars ($5,281.00) of said indebtedness is paid.
    “That on February 4, 1893, said defendant, The Ohio Lumber and Manufacturing- Company, by written agreement, purchased said lots numbers .239, 240, 241, 242, 243, 244 'and 245 in Ransom’s addition to the city of' Toledo, Lucas county, Ohio, from one John R. B. Ransom, for an agreed • price of $3,500.00, $700.00 of which was then paid in cash, and $400.00 was to be paid January 15, 1894; $400.00 January 15, 1895; $500.00 January 15, 1896, and the remaining $1,500.00 on January 15, 1897; said deferred payments to bear interest at 6 per cent, per annum, payable semi-annually from January 15, 1893; said contract further provided that said The Ohio Lumber and Manufacturing Company, should, at its option, have the right to take a deed to said premises, and give back a mortgage thereon to secure any balance then unpaid upon said purchase price; that on May 27, 1893, said John R. B. Ransom, without said contract being assigned by said The Ohio Lumber and Manufacturing- Company, deeded all of said lots to one Bertram L. Paine, and that on said date, May 27, 1893, said Bertram L. Paine made a written application to said defendant, The Mutual Aid-Building and Loan Company, bearing-said date for a loan of $5,000.00, and on the same date said Paine duly executed a mortgage upon all of said lots to said defendant. The Mutual Aid Building and Loan Company, to secure $5,000.00 on said date borrowed from said company, and, on same date said Paine duly executed a deed of all said lots to said defendant, the Ohio Lumber and Manufacturing Company.
    “That on May 27, 1893, said defendant, The Ohio Lumber and Manufacturing Company, out of the money so received from and loaned by said defendant, The Mutual Building and Loan Company, paid said John R. B. Ransom $2,652.73, being the balance due with interest, on the said purchase price of the above described premises; said mortgage given by said Paine to said The Mutual Aid Building and Loan Company as aforesaid, was duly recorded in volume 161, at page 276, of the Mortgage Records of said Lucas county, Ohio, on the 27th day of May, 1893, and that by reason thereof, the said The Mutual Aid Building and Loan Company, acquired and has a lien on said premises and the improvements thereon, to secure the said indebtedness due and to become due, and the proceeds arising _from the sale thereof; that the said lien is entitled to priority, after the payment of the costs as herein provided, the lien of said taxes and assessments, and the lien of said defendants, The Shaw, Kendall and Company, Henry P. Tobey, and Arbuckle, Ryan and Company, respectively; which finding, as to said loan being made to the Ohio Lumber and Manufacturing Company, and said finding of the order of priority of said liens, said defendant, The Mutual- Aid Building and Loan Company, duly excepted.”
    After providing for the payment of costs and taxes, the court distributed the proceeds of the sale of said property as follows:
    “3. That there be next paid by said assignee from said proceeds, arising from the sale of said property other than saidengineand boiler, with their fittings and connections, the lien claims of said defendants, The Shaw, Kendall and Company, and said Henry P. Tobey, repectively, less their said proportion of said excepted costs. To which order each of said lienor defendants severally duly excepted.
    “4. That the proceeds arising from the sale of said boiler and engine, with their fittings and connections, said assignee shall pay to said defendant, Arbuckle, Ryan and Company, upon account of the lien claim of said defendant less its said proportion of said excepted costs. To which order Arbuckle, Ryan and Company, and The Mutual Aid Building and Loan Company, duly excepted.
    “5. That balance of said proceeds, the said assignee shall pay to the defendant, The Mutual Aid Building and Loan Company, upon account of its said lien claim, less its said proportion of said excepted costs, to which order The Mutual Aid Building and Loan Company duly excepted.

      “6. It is further considered and ordered by the court that the plaintiff, said William A. Gashe, assignee as aforesaid, and the defendants, The Shaw, Kendall and Company, Henry P. Tobey, and Arbuekle, Ryan and Company, respectively, each having recovered from said defendant. The Mutual Aid Building and Loan Company, their costs respectively, incurred herein, in this court, and taxed at $-, as follows:”
    The cause was taken to the circuit court on error by the Mutual Aid Building and Loan Company, the plaintiff in error. One of the defendants in error, Arbuekle, Ryan and Company, also filed in the circuit court a cross petition in error. The circuit court affirmed the judgment of the court of common pleas. Thereupon the plaintiff in error, The Mutual Aid Building and- Loan Company, filed a petition in error in this court to obtain a reversal of the judgments of bot-h of said courts.

      Hurd, Brumback c& Thatcher, for plaintiff in error.
    A mechanic’s lien can only be had for enhancing the value of the premises.
    The statute 3184 R. S. is to be strictly construed until the lien is found to exist, since such alien is in derogation of the common law. Roekel & White, Mech. Liens, 44, and eases cited; Philips on Meehan. Liens, section 10; Minor v. Marshall, 27 Pa., 481.
    The equity in a mechanic’s lien arises from the fact that the value of the premises, upon which'the labor and material have been expended, has been increased, 15 Amer. & Eng. Eneyc. Law, 7; Perkins v. Pike, 42 Me., 141; Cent. Law Jo.ur., Vol. 39, No. 22, p. 445; Mochon v. Sullivan, 1 Mont.,470.

      A mechanic’s lien is also allowed because the material and labor becomes a part of the interest in the land in such wise that no other lien can be had for the material or labor. Philips Mec. Liens, section 176; Griggs v. Stone, 51 N. J. Law, 549.
    The statute should be construed 'according’ to the mischief to be remedied, which was that by the common law, the mechanic who erected, constructed, or repaired fixed or stationary machinery, structures or buildings, was without that safe security for compensation which a specific lien on the machinery, the structure or building would afford. But with reference to movable machines, implements or chattels, the common law affords ample and complete security to the mechanic by leaving in him the right of property if he chooses to make his sale upon the appropriate stipulations or conditions, or he may retain the possession thereof. Philips on Mechanic’s Liens, 178; New Eng. Go. v. B. áa O. R. R., 11 Md., 81. '
    It must appear in all cases of mechanic’s liens that the material, labor and machinery for which the lien is claimed is of such character as to make it a part of the realty, or of an interest in the realty. Rockel & White, Ohio Mechanic’s Liens, 7, 10; Philips on Meehan. Liens, sections 12,162 and fol.; Richardson v. Koch, 81 Mo., 264; 2 Jones on Liens, section 1385; Baker v. Fessenden, 71 Me.,292; Schofield v. Stout, 59 Ga., 537; Stout v. Sawyer, 37 Mich., 312; Watts Go. v.Tuengling, 125 N. Y., T,Tarechi v. Philharmonic Society, 79 Pa. St., 403; Gimbert v. Ileinsath, 11 Cir. Court Rep., 339; Kart v. Globe Ironworks, 37 Ohio St., 75; Dutro v. Wilson, 4Ohio St., 101.
    While it is true in Ohio that material furnished for the gmrpose of being made a fixture will entitle to a lien, although otherwise appropriated without the consent of the party furnishing the same, Beckel v. Fetticrew, 6 Ohio St., 247.
    Yet • the material must be furnished for . the particular purpose of bettering the premises to entitle to a mechanic’s lien. Where furnished without a contract express or implied as to their specific application to the' betterment of the realty, no lien can be had. Chotean v. Thompson, 2 Ohio St. 114; Hyman v. Gordon, 21 Week L. B., 179; S. C. Goeb, Rep., 189; Matter assignment Brewing-Co., Goeb. Rep., 193.
    A mechanic’s lien dates back on a long- running account to the date of the first item. It would be a harsh rule, and render all mortgage security unsafe upon factories, to allow such a lien upon all the various articles of machinery that may be put into the factory to erect, alter or repair it, regardless of whether they became fixtures in the factory or not. No one would loan money,,upon a factory under such a rule. The lien would date back ahead of the mortgage to the first machinery furnished and become a lien upon the real estate, although the personal property adds nothing to the real estate. Rutherford v. Railroad Go., 35 Ohio St., 566.
    The articles furnished and for which a claim is made here for a mechanic’s lien, did not become appurtenant to .or fixtures in the mill in any respect. Teaffy. Hewitt, 1 Ohio St., 511; CaseManfg. Go. v. Garven, 45 Ohio St., 289.
    The crite.rions of a fixture are as follows :
    1. Actual annexation to the realty, or something-appurtenant thereto.
    2. Application to the use or purpose to which that part of the realty with which it is connected is appropriated.

      3. The intention of the party making the annexation to make a permanent accession to the freehold. Fortman v. Goepper, 14 Ohio St., 558.
    The mode of annexing alone will not determine the character of the property. The same mode may exist and yet the property be personal in one case and real in the other. Brennan v. Whitaker, 15 Ohio St., 452; Wagner v. Cleve. <& Tol. R. R. Co., 22 Ohio St., 577.
    ' A banker’s safe, though bricked in, is personalty. Moody v. Aiken, 5C Tex., 65.
    Looms, cards, spinning frames, etc., fastened to the floor of a cotton mill to steady them, are not fixtures. Bartlett v. Wood, 32 Vt., 372; Me Kim v. Mason, 3 Md. Chan., 186; Murdock v. Gifford, 18 N. Y., 28.
    So a planing machine weighing three tons when it could be removed from the building without injury. Wheelers. Bedell, 40 Mich., 693.
    On the other hand a large stationery boiler and engine as usually affixed to the soil are fixtures. Doughty v. Oioen, 19 A., 540.
    The distinction drawn in one case where shafting, gearing for the saws, etc., in a saw mill are held to be fixtures, is, that without the said machinery the building would have been of comparatively little value. Carpenter v. Walker, 140 Mass., 416; Tail v. Weaver, 132 Pa. St., 363; Chase v. Tacoma Box Co., Wash.; Ilill v. Wentworth, 28 Vt., 429; Keeler v. Keeler, 31 N. J., Eq., 181.
    The action of the lumber company places it beyond controversy that it intended the machinery in the mill was to remain personal property, at least until paid for.
    The following, among other things, proclaim this intention:

      1. The chattel mortgage executed by the Lumber Company to Arbuckle, Ryan & Co., upon the boiler and engine.
    2. The waiver of lien, and agreement by Paine (Lumber Company) and Arbuckle, Ryan & Co., that the boiler and engine were to remain personalty.
    3. The chattel mortgage given to Baker Brothers upon the machinery used to perform the work (purpose) of the planing mill.
    In all these enactments, it cannot but be apparent from the language that there is to be no lien unless the material, etc., furnished is added to the realty interest in such wise as to become a part of and a betterment of the same.
    In g-eneral we submit the test of what is the subject of a mechanic’s lien on the realty, is the same as what would pass under a deed conveying property, and “all appurtenances thereunto belonging.'1'' Under every principle of equity it would seem so, and all the authorities sustain the claim.
    Again, to entitle to a mechanic’s lien, the materials must be furnished “by virtue of a contract or agreement with the oponer. ’ ’ A mere selling of goods and merchandise by a dealer will not entitle him to a mechanic’s lien. There must be something more than a mere agreement- to do work or sell g-oods.
    The question ,of the constitutionality of the Act raised has been passed upon by the lower courts.
    In favor of its constitutionality. Gimbert vHeinsath, 11 Cir. Ct. Rep., 339.
    Against the constitutionality. Palmer v. Tingle, 55 Ohio St., 423.
    While we concede that a vendor’s lien is not ordinarily assignable at law, it is nevertheless true in Ohio that there are exceptions to the rule oí non assignability; e. g., it can be subjected by a creditor to the payment of his debt. The exceptions in Equity are for the purpose of doing' justice. Edwards v. Edwards, 24 Ohio St., 402.
    The whole doctrine of the Vendor Lien is founded upon the doctrine of Equitable Trusts. Whetzil v. Roberts, 31 Ohio St., 503.

      We insist that, in the same way, Equity will substitute the Loan Company (for the amount paid by it upon the purchase price of the real estate) to the vendor’s lien of Ransom, inasmuch as it paid off the balance of the purchase money at the Lumber Company’s request. Dixon on Subrogation, 165; Gans v. Thiems, 93 N. Y., 225.
    The very question at bar arose in the late Tennessee case, Leming v. Stevens, 32 S. N. Rep., 961; Emmert v. Thompson, 49 Minn., 386.
    The great weight of authority is to the effect that where one pays the purchase money at the instance or request of a vendee, he is entitled'by substitution to the benefit of the vendor’s equitable lien. Such a one is in no true sense a mere strang’er or volunteer. 24 Amer. & Eng. Encyc. Law, 294; 3 Pomeroy Eq. Jurispru., See. 1212; Jones v. Parker, 51 Wis., 218; Price v. Davis, 88 Va., 939; Lawrence v. United States, 71 Fed.; 228; Sidener v. Pavey, 77 Ind., 241; D wenger v. Brannigan, 95 Ind., 221; Trads’n Bdg~ Ass. v. Thompson, 32 N. J., Eq., 133; Detroit Lns. Go. v. Aspinall, 48 Mich., 238; Texas Land Go. v. Blalock, 76 Tex., 85; N. L. Build. Go. v. Cumberland Go., 33 A. 964.
    It is well settled that the burden is on the grantee to show that a vendor's lien was not reserved as security for the unpaid purchase price.
      Tiernan v. Beam, 2 Ohio, 386; McLean v. Smith, 18 South, 662; 2 Jones on Liens, Sec. 1064.
    Nor was the Loan Co. a mere volunteer in furnishing the money under its mortgage to pay off the vendor.
    This Court has had occasion to pass upon this very question in the case of Joyce v. Dauntz, 55 Ohio St., 538; 2 Jones on Liens, Sec., 1083; Neil v. Kinney, 11 Ohio St., 58.

      I. N. Huntsberger and Harris <& Thurston for The Shaw, Kendall Co. and Henry P. Tobey, defendants in error.
    This court has held that the law is to be liberally construed to advance the femedy therein provided.' Bullock v. Horn, 44 Ohio St., 420; By. Oo.v. Cronin, 33 Id., 122; Thomas v. Huesman, 10 Id., 153; Davis v. Hines, 6 Id., 473; Phoenix Furn. Co. v. Put-inBcoy, 2 O. L. News, 304; Ed%oard v. Derrickson, 28 N. J. L., 39.

      Han't v. Globe Iron "Works, 37 Ohio St., 75; Farrer v. Stackpole, 6 Greenleaf, 154; Dicky’s Appeal, 115 Pa. St., 73; 7 At: Rep., 577 ; Dimmick v. Cook, Id., 573; 8 At. Rep., 627.
    See opinion of Pugsley, J. in this case, 1 Tol. Leg: News 99, and Millard J., 31 Law, Bui., 189.
    In order to support a mechanic’s lien, therefore, the machinery or material furnished 'need not be so affixed as to become a part of the realty as between vendor and vendee, or heir and executor. It is sufficient if it constitutes a part of the equipment or plant of the mill, or is an appurtenance thereto, or has been furnished for that purpose, even though otherwise appropriated.

      Beckel v. Petticrew, 6 Ohio St., 247; Devine v. Taylor, 12 C. C. Rep., 723; Pond v. Robinson, 38 Minn., 272; 37 N. W. Rep., 99. Dickey’s Appeal, supra.

    As the law stood before the amendment in 1889 (86 v. 373) there was no provision that the lien should exist “upon the machinery and material so furnished,” but that clause was then inserted. This indicates a purpose to enlarge the scope of the statute and to give aright of lien directly upon personal property (the machinery and material furnished), as well as upon the interest of the owner in the real estate, and without their being so closely connected as to merge the personalty in the realty; for if they were so connected, the lien upon the land of the interest upon the owner therein, would extend to and cover such machinery and material without express mention. Dutro v. Wilson, 4 Ohio St., 101; Choteau v. Thompson, 2 Ohio St., 114; Case Mfg. Co. v. Garven, 45 Ohio St., 289 ; Brennan v. Whittaker, 15 Ohio St., 446.
    There was no express intention upon the subject on the part of the Lumber Company as to any machinery furnished it, and, so far as intention goes, therefore, the law would imply from the facts in this case that the Lumber Company intended to make .the machinery and materials furnished by The Shaw, Kendall & Company and Tobey a permanent accession to the free-hold. Teaff y. Hewitt, 1 Ohio St., 511; Watts v. Yuengling, 3 N. Y. Sup., 869Dimmick v. Cook, 115 Pa. St., 573; 8 At. Rep., 627.
    This court has held, even as between vendor and vendee, mortgagor and mortgagee, that such machinery constituting the motive power of a mill or factory is a part of the realty. Fortman v. Goepper, 14 Ohio St., 558.

      See this cake in the Courts below, 1 Tol. Legal News, 99 ; 31 L. B., 189. It has been repeatedly held that belting used to connect the motive power with the machines in a mill is a permanent part of the mill and constitutes at least an appurtenance or fixture. Currier v. Cummings, 40 N. J. Eq., 145; Poiodl v. Monson, 3 Mason 459.
    The same has been held as to a flume connecting the mill race with the water wheel. Ed/ioards v. Berrickson, 28 N. J. L., 39. ‘ ‘ .
    Also as to the wires and»poles connecting the lamps of an electric lig’ht plant with the central station. Badger v. Marion, AS Kans., 187; 29 Pac. Rep., 476; 30 Id., 117;. Hughes v. Lambertville, 32 At. Rep., 69, (N. J. Eq.)
    Also as to apipe connecting ahousewith a sewer. Beattys. Parker, 141 Mass., 523. * •
    And as to the pipes óf a .refrigerating company extending from its plant to residences. Steger v.. Refrigerating Co., 14 S. W. Rep., 1087 (Tenn.)
    The following cases also support the proposi' tionsthat machinery constituting’the motive power and apparatus for transmitting’ the same to the machine is a fixture, and protected by the mechanic’s lien law. Bonalvue v. Cromartie, 21 Cal., 80; Morgan v. Arthurs, 3 Watts., 140 ; Dickey’s Appeal, 115 Pa. St., 73; S. C, 3 N. Y. Sup., 869.
    The law is well settled that, where one in possession of land under a contract of purchase, erects a building or factory thereon; and after the contractors or laborers have done work upon, and furnished material for such building, the title is conveyed to the purchaser, who thereupon mortgages the same to a third party other than the grantor, the mechanic liens taken by the contractor or laborer have priority over such mortgage as to the whole of the property, and not simply as to the interest possessed therein by the purchaser when the building was begun. 2 Jones on Liens, Secs. 1470-1, 1482-3; Neil v. Kinney, 11 Ohio St., 58; Avery v. Clark, 87 Cal., 619; Rosenthal v.M. Brick Co., 61 Md., 590; Meyer Bros. v. Brown, 46 Kans., 543; Bchultze v. Alamo, (Texas), 21 S. W. Rep., 160; Colman v. Goodnoio, 36 Minn., 9; Reilly v. Williams, 47 Id., 590; Rollinv. Cross, 45 N. Y., 766;' McGrcrn v. Godfrey, 16 Abb. Pr. N. S., 358; Lyon v. Me Guffey, 4 Pa. St., 126; Carew v. Stubbs, 155 Mass., 549; Hooker v. McGlone, 42 Conn., 95; Bottsford v. Ry. Co., 41 Id., 454; Williamson v. Ry. Go. 28 N. J. Eq., 277; Same v. Same, 29 Id., 311.
    The fact that Paine held the title' in trust for the Lumber Company cuts no figure in this case. It would make no difference if he had held the title all the time, so far as the mechanic’s liens are concerned. Weaver v.' Sheeler, 124 Pa. St., 473; 17 At. Rep., 17; 118 Pa. St., 634; L2 At. Rep., 558.
    The Loan Company is not entitled to be subrogated to a vendor’s lien by reason of the fact that the Lumber Company used some of the money loaned in paying Ransom for the real estate.
    The vendor’s lien in this state is not assignable, and “before the legal title passed from the vendor on his contract of sale of the land there was no such lien.” Brush v. Kinsley, 14 Ohio, 21; Jack-man v. Hillock, 1 Ohio, 318; Neil v. Kinney, 11 Ohio St., 58; Horton v. Horner, 14 Ohio, 437; Avery v. Clark, 87 Cal., 619; 25 Pac. R., 919; 2 Jones on Liens, Sec. 1107. Sheldon, Subrogation, (2nd ed.) Sec., 241.
    In states holding a vendor’s lien to be unassignable there can be nó subrogation thereto by implication of law. McArthur v. Porten, 1 Ohio, 99; 28 Am. and Eng. Enc. of Law, 169; Nichol v. Dunn, 25 Ark., 129; Haskell v. Scott, 56 Ind., 564; 2 Jones on Liens, Sec. 1093;. 3 Pom. Eq. Jur. Sec. 1254.
    But even if the money was loaned for the purpose of paying for the lots, the Loan Company*cannot claim a vendor’s lien for the money so used, even if such lien were assignable. It was a mere volunteer in the matter. This case is “on all fours ” with, Stansell v. Roberts, 13 Ohio, 149; Small v. Siagg, 95 111., 39; Aetna v. Middleport, 124 U. S., 534; Gadsden v. Brown, Speer’s Eq. (S. C.)37; Sanford v. McLean, 3 Paige, 117; Shinn v. Budd, 14 N. J. Eq., 234; Durant v. Davis, 10 Heisk., 522.
    See opinion of Courts below in this case.
    1 Tol. L. N. 99, 102; 31 L. B., 189; Sheldon, Subrogation (2nd ed.), Secs. 2, 3, 240.
    In order to be subrogated in this case one of two thing’s must appear; fi/rst, that there was & paramount assignable lien on the land in favor of Ransom, existing at the same time with the mortgage of the Loan Company, against which lien it has the right to redeem and did redeem the land for the. protection of its mortgage; unde}’ such circumstances subrogation by implication of law arises, but not to the prejudice of intervening third parties without notice. Joyce v. Dauntz, 55 Ohio St., 538; Prairie v. D. S., 164 U. S., 227; 1 Jones on Liens, Sec. 70; 3 Pom. Eq. Jur., Sec. 1212.
    ■ But in this case the money was not paid to Ransom by the Loan Company, but by the Lumber # Company through its President, John M. Ormond, and it was paid when' Ransom delivered his deed, which was at the same time the mortgage was delivered; so there never was a time when Ransom had a vendor’s lien to which any one could be subrogated, even if subrogation to a vendor’s position by implication of law were possible, which is not the case in Ohio. Brush v. Kinsley, 14 Ohio, 21; 28 Am. and Eng. En. of Law, 169; 2 Jones Liens, Sec. 1092; 3 Pom. Eq. Jur., Sec. 1254. Prairie State Natl. Banker. U. S. 164 U. S., 227; 2 Jones on Liens, Secs. 1107, 1122; 1 Id., Sees.- 70, 73, 74; Markoe v. Andros, 67 111., 34; Ilines v. Perkins, 2 Heisk., 395; 28 Am. & Eng. En. of Law, 184, 190, 192; 3 Pom. Eq. Jur., Secs. 1255-9.
    Where such a lien does not appear of record and intervening’ creditors or purchasers have no notice of the agreement for the lien, it will not be allowed to their prejudice. Printup v. Barrett, 46 Ga., 407; 1 Jones on Liens, Sec. 70.
    In Ohio this species of vendor’s lien by express reservation is not recognized and allowed as capable of passing by assignment or subrogation, but the contrary is expressly held. Herman v. Beam, 2 Ohio, 383; Stansell v. Roberts, 13 Ohio 149; Bntsh v. Kinsley, 14 Ohio, 21; Taylor v. Foote, W., 356.
    And the policy of this state is against any extention of the doctrine of vendor’s liens. Williams v. Roberts, 5 Ohio, 36; 2 Jones on Liens, 2d Ed., Sec. 1119; Leming v. Stevens, 32 S. W. Rep., 961; Price v. Davis, 88 Va., 936; Dioenger v. Branigan, '95 Ind., 221; Nichols v. Glover, 41 Ind., 25.
    No part of the costs in the probate court should be taxed against the holders of mechanics’ liens. The .total costs and expenses of selling the real ^estate should first be paid out of the proceeds of the property covered by the liens and mortgage, and the latter should next be satisfied in full, according to their priority. “Whatever deficiency there is must fall upon the junior lien-holder.” Stone v. Strong, 42 Ohio St., 53; Alms v. Fitten, 9 C. G.,255, 258; Harrison v. Chatfield, 12 C. C.,294; Holmes v. Booh, 1 O. N. P., 58, 61; Section 6351 R. S.

      King <& Tracy, for John W. Arbuckle, et al.,' defendants in error.
    1. It is beyond dispute that the claim of Ar-buckle, Ryan and Company against The Lumber Company and its property, arose long prior to that of the Loan Company; the contract of the former with the Lumber Company having been entered into February 16, 1893, and that of the latter not until May 27, 1893, and we respectfully submit that the record discloses nothing which abridges the application of the equitable doctrine expressed in the maxim:— “Prior in time is prior in right.'1'1

    The Loan Company acquired its mortgage subject to the mechanics’ liens of defendants in error. Williamson Trustee v. R. R. Co., 28 N. J. Eq., 177; Williamson Trustee v.R. R. Co., 29 N. J. Eq., 311.
    2. The waiver of Arbuckle, Ryan and Company, it will be noticed, is very restricted in its terms, and it plainly expresses the fact that it was given only in favor of The Loan Company, so far as the real estate of The Lumber Company was concerned ; the intention to retain the right of lien against The Lumber Company and others generally, and against The Loan Company as to the engine, boiler, pump, connections, etc., furnished by this firm, is, we think, conclusively evidenced.
    It is ‘well settled in Ohio that mechanics’ lien statutes, being remedial in their nature,are to be liberally construed to effect their purpose. Bulloch v. Horn, Ohio St., 420; Standard Oil Co. v. Snowden, Assignee, 55 Ohio St., 332.

      We respectfully submit that within the undisputed facts of this case The Loan Company is not entitled to be subrogated to Ransom’s right to claim a vendor’s lien upon the real estate of The Lumber Company. 2 Jones on Liens, Sec. 1063-67; Chapman v. Abrahams, 61 Ala., 41; Gray v. Baird, 4 B. J. Lee, (Tennessee), 212.
    The using borrowed money to pay for land, does not give the lender the right' even to be subrogated to the vendor’s lien. Stansell v. Robert, 13 Ohio St., 148; Durant v. .Davis', 10 Heiss, 522.
    Generally the lien of a vendor of real estate is considered personal, and is not assignable except under peculiarly equitable circumstances The Loan. Company, however,' does not claim by express assignment, but insists that to the extent to which it furnished funds for the satisfaction of Ransom’s lien, it is entitled to be subrogated to his right.
    A vendor’s lien is strictly personal, and can be enforced onty by him, and the prevailing doctrine is that this lien is implied only in favor of the vendor himself as a personal equity. Brush v. Kinsley, 14 Ohio, 21; Horton v. Horner, 14 Ohio, 437 ; Jackman v. Hallock, 1 Ohio, 318; Tiernan v. Bean, 2 Ohio, 383; Ogle v. Ogle, 41 Ohio St., 359; Gashee, Assignee, v. O. L. da If. Co., 1 O. L. N., 99 C. P. Ct.; Keith v. Horner, 35 111., 524; Richards v. Learning, 27 111., 431; Small v. Stagg, 95 111., 39; Hecht v.,Sparks, 27 Ark., 229 ; Ifammond v. Peyton-, 34 Minn., 529; Nichol v. Dunn, 25 Ark., 129; Haskell v. Scott, 56 Ind., 564; Botsford v. R. R.' Co., 41 Conn., 454.

      J. A. Barber and C. F. Watts, also for defendants in error.
   Bradbury, J.

With one exception only, this court concurs in the order in which the courts below distributed the funds in controversy. This exception relates to the rights of the plaintiff in error.

The finding of facts shows that the fund arose from the sale of seven city lots with the buildings and machinery placed thereon by the Ohio Lumber and Manufacturing' Company, the insolvent assignor, and that these seven city lots, the buildings erected thereon and the machinery placed, therein were an entirety, constituting a single manufacturing establishment. Notwithstanding the property was found to be a unit, the boiler, engine, etc., were sold separately, and the proceeds of their sale distributed to 'Arbuckle, Ryan and Company, the material men, by whom they were furnished. This separate sale, and application of proceeds was had by force of certain written instruments, by the terms of which the boiler, engine, etc., was not to become a part of the realty until their price was paid, and by which Arbuckle, Ryan and Company, also waived a lien, as material men, against the real estate. This left for distribution among the several remaininglienholders the balance of the fund arising from the sale of the property. So far as the finding of the court shows, these lienholders are the plaintiffs in error, The Shaw, 'Kendall and Company, and Henry P. Tobey. The former claiming, by force of a mortgage, the two latter by virtue of mechanic’s or material men’s lien.

The date of the first item in the account of “The Shaw, Kendall & Company,” was April 1, 1893; the date of the first item in the account of Henry P. Tobey, was April 18, 1893. While the date of mortgage under which plaintiff in error claims, and the day it was left with the county recorder for record, was May 27, 1893. The liens of the material men dating, as the terms of section 3187, Revised Statutes, provides, from the day on which the first item in their respective accounts was furnished, are prior in point of time to that of the plaintiff in error under its mortgage. These liens respectively of the material men, then, attached to the property on the day when the first item in their respective accounts was furnished. According to the view we have taken of the ease, however, the rights of the contestants do hot depend entirely upon the dates when their respective liens attached, but, instead, that their interest in the property which the liens reached is a most material circumstance. The Ohio Lumber & Manufacturing Company was not the absolute owner of the property, and it was with that company that the respective contracts of the material men had been' made. In the nature of things the lien of the material men must be limited to the interest of the person who is'erectingthe structure or making the improvement. Breed, Lessee v. Nagle, 46 Ga., 112; Tritch v. Norton, 10 Colo., 337; Copley et al. v. O'Niel, 39 How. Pr. (N. Y.), 41; Hopkins et al. v. Hudson et al., 107 Ind., 191; Montandon & Co. v. Deas, 14 Ala., 33; Goldheim v. Clarke et al., 13 Md., 363; McGreary v. Osborne et al., 9 Cal., 119; Johnson et al., v. Dewey et al., 36 Cal., 623; Phelps et al. v. Maxwell's Creek Gold Mining Co. et al., 49 Cal., 336; Garrett v. Stevenson et al., 8 Gilman, (Ill.), 261. Ordinarily the general assembly would not have power to charge upon one man’s property the obligations of another. In the case of mechanic and material men’s liens it has not attempted to do so, but confines “the lien to the interest of the owner in the lot of (or) land on which the ” building or improvement may stand ; section 3184, Revised Statutes. The statute recognizes that parties having an estate inland limited in its character or duration, may seek to improve it, and pledges that interest to one who may contribute in the prescribed method to such improvements,'but"it goes no further, and in no way authorizes an extension of the lien to the interest of another. . Doubtless, however, the lien of the mechanic or material man will expand and cover whatever interest the owner making the-improvement, may subsequently acquire. O'Brien v. Hanson, 9 Mo. App., 545; Garrett v. Stevenson, & Gilman (Ill.), 261; Phillips on Mechanic’s Liens, section 186.

In the case before us, The Ohio Lumber and Manufacturing Company was in possession of the seven lots upon which its manufactory was erected, under a contract of sale. The entire price it was to pay was $3,500.00; of this amount it had paid $700.00, leaving unpaid $2,800 ; as against the ven dor its only interest was the difference between the unpaid balance of the purchase price, $2,800.00 and . the valueof the property. If that value was $3,500.00, its interest would be $700.00; if the property was of greater value than the purchase price, its interest exceeded$700.00, the amount it had paid down; if the property was of less value than the purchase price- its- interest was less than $700.00. This is apparent because the vendor was entitled to the balance due him, even, if upon a sale of the property, the entire proceeds should be required for that purpose, while on the other hand, however much a sale of the property might produce he could demand no more than this balance. The interest of the Ohio Lumber and Manufacturing Company-in the seven lots, at the inception of the liens of the material, men being this difference between the actual value of the lots and the balance due the vendor, their liens as against said vendor and those who should succeed to his rights attached to the real estate to the extent, only of that interest. The legal title to these lots was in the vendor. Material men, who furnished material under a contract with the vendee to aid in the erection of a manufactory, in process of construction by such vendee cannot postpone the claim of the vendor until their liens are satisfied. By the unbroken current of-authority, where no equitable estoppel-is established, the right of such vendor is paramount to the lien of a material man or builder. Scales v. Griffin, 2 Douglas, (Mich.,) 54; Paulsen v. Manske, 126 Ill., 72; Norden et al. v. Hammond et al., 37 Cal., 61; Harsh v. Morgan et al., 1 Kans., 293; English et al. v. Foote et al., 8 Smedes & Marshall (Miss.), 444 ; Orr v. Batterton, 14 B. Monroe (Ky.), 100. The right of such vendor to prioritj'- does not rest upon thedoctrinethat pertains to “vendors’ liens.” Vendors’ liens arise when the title to land has been conveyed, and is the creature of equity.

The right of one who enters into a contract to convey land, but retains the legal title, and is not bound to convey it.to the purchaser, until full payment has been made stands upon a different and more substantial foundation than one who has conveyed his land away. Whatever the rights of the latter may be, and howsoever easily lost, the former has reserved to himself the title andean be divested of it only by a full compliance with the terms of the contract.

This legal title can be conveyed to another, subject, however, to the rights of the prior vendee, but the rights of the prior vendee against the new owner of the legal title are no greater than they were against his vendor. It is within the power of the original vendor to convey, to any purchaser, the legal title, and such purchaser will stand in the shoes of his grantor. In the ease under consideration, Ransom, the vendor of the Ohio Lumber & Manufacturing Company, conveyed the legal title to Bertram L. Paine. By this conveyance Paine became vested with every right that Ransom had previously possessed. While the legal title was in Paine, he conveyed it by way of mortgage to the plaintiff in error, the Mutual Aid Building & Loan Company, to secure a loan of about $5,000. This, Paine had a perfect right to do, and by this mortgage he conveyed to The Mutual Aid Building & Loan Company every right possessed by him, which, as we have seen, was precisely those that the original vendor. Ransom, had under his contract of sale ; and that was that the balance of the purchase price should be paid before the vendee, The Ohio Lumber & Manufacturing Com panjq was entitled to receive an absolute conveyance for the lots. The rights of the mortgagee, The Loan Association, having become fixed by the execution to it of the mortgage, it had no further concern about the action of Paine, its mortgagor; his subsequent action could not impair its rights. His deed conveying these seven lots to the Ohio Lumber & Manufacturing Company, executed and delivered after mortgage lien had attached, did not impair that lien. True it placed the legal title in the grantee, but the “interest” of the grantee was not thereby enlarged ; its obligation to pay the purchase price before the ownership became complete still remained. This obligation had assumed a new form ; instead of being embodied in a contract for the sale and purchase of the lots in question, it was evidenced by the mortgage thereon ; nevertheless it was in fact the same. Houck on Mechanic’s Liens, section 145. Courts of equity, in reaching their conclusions, regard the substance of things rather than their mere forms.

It may be said, and it is doubtless true, that Paine, in receiving the conveyance for these lots, and afterwards executing a mortgage to The Mutual Aid Building & Loan Company, and a deed to The Ohio Lumber & Manufacturing Company, was a mere conduit for passing the title, and that the several conveyances were made at the. same time. This, however, does not weaken the position of The Mutual Aid Building’ & Loan Company. The order in which the several conveyances were made, and the attending circumstance clearly show a purpose on the part of the parties to vest in The Mutual Aid Building & Loan Company, as seeurit}T for a loan, all the title and beneficial interest in these lots, which Ransom, the original vendor retained in himself by virtue of his legal title. This right was to vest under the mortgage before the title should be conveyed to The Ohio Lumber & Manufacturing Company. This purpose was formally and legally ‘accomplished by means of the several conveyances had between the parties. Relying on this result, The Mutual Aid Building & Loan Company, in good faith, parted with its money. It succeeded to both the legal title and the beneficial interest of Ransom by these formal conveyances and paid full value for them. The situation of the material men is not changed, nor their rights affected by these conveyances. The conveyances touched no- interest in these lots „o which their liens reached. By taking liens on the interest of the vendee the lienors were not clothed with a right to deny to the vendor the power of disposition over his legal title. Thaxter v. Williams, 14 Pick. (Mass)., 49; Campbell v. Phoro's Appeal, Simers’ Appeal 36 Pa. St., 247. So far, therefore, as the Mutual Aid Building & Loan Company succeeded to the rights of theoriginal vendor, Ransom, the lien of its mortgage was paramount to that of the material men. This is not a result following the application of the equitable doctrine of subrogation ; it is founded upon the legal rights of the parties flowing from their acts and purposes. Excluding the funds which arose from the sale of the boiler, engine, etc., furnished by Arbuckle, Ryan & Co., which were properly applied to the payment of the lien of that company, the proceeds of the sale of the other property, after paying costs, taxes, etc., should have been applied to the payment of the mortgage debt of The Mutual Aid Building & Loan Company to the extent that it succeeded to the rights of Ransom, which was in the sum -of $2,652.73, with interest from May27, 1893.

Any balance of such proceeds remaining undistributed should then be applied to the payment of the leins of The Shaw, Kendall & Company and Henry P. Tobey, whose liens are of equal priority with each other. Should any funds remain after satisfying the two claims last named, it should be applied to the payment of the balance remaining unpaid on the mortgage of The Mutual Aid Building & Loan Company.

Judgment modified


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Ryan, Sheriff v. Root & McBride Bros.

      Execution against personal property — Priority of liens — Duty of sheriff — Levy by creditor before assignment of debtor — Levy inures to benefit of execution creditor's judgments taken after assignment but at same term — Section 5388, Rev. Stat.

    At the January term, 1893, of the common pleas court of Cuyahoga county, F. recovered a judgment against M., upon which execution was issued and certain goods and chattels of M. seized by the sheriff of that county. Shortly after, M. made a general assignment for the benefit of creditors. Subsequently, at the same term of court, R. & McB., in adversary proeeedings,recovered two judgments against M. on-which executions issued and were delivered to-the same officer, with notice that those creditors claimed the right to pro rate with F. in the proceeds arising from the sale of the goods and chattels seized under the execution issued on the judgment of F. The sheriff did not levy the writs, but returned them nulla bona, and denied R. & McB. the right to pro rate. The sale realized a sum just equal to the judgment of F. and costs:

      Held, 1. The goods and chattels of M., when seized in execution by the sheriff, were brought' within the operation of section 5382, Revised Statutes, which directs that when two or more writs of execution against the same debtor are gued out during the term at which judgment was rendered, no preference shall be given to either of such writs ; but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in propor- . tion to the amount of their respective demands, and no subsequent assignment by the debtor could have the effect to prevent the application of the proceeds of sale as directed by the statute.
    2. The seizure under the writ in favor of F. inured to the benefit of the subsequent judgment creditors, and no formal levy of the later executions was necessary.
    3. Under the section cited, the judgments of R. & McB. had equal rights with that of F.. and it was the duty of the sheriff to distribute the proceeds of the sale to the several judgment creditors in proportion to the amount of their respective demands.

      i, On refusal by the sheriff to perform this duty, and on his return of the executions nulla bona, an action for damages as for a false return was a proper form of action.
    (Decided April 27, 1897.)

      Error to the Circuit Court of Cuyahoga county.
    The defendants in error brought suit in the common pleas of Cuyahoga county against the plaintiff in error, setting out, among other pertinent facts, the following:
    At the January term, 1893, of said court, one Simon Pischel recovered judgment against one Adolph Mahrer. An execution was issued to the sheriff who thereupon levied on and took possession of certain personal property of the defendant. Subsequent to the levy, Mahrer assigned all his property for the benefit of his creditors to one Peter Zucker. After the assignment but before the sale under the prior levy, and during’ the same January term of court, Root & McBride Brothers, in adversary proceedings, recovered two several judgments against Mahrer, and immediately caused executions to issue to the sheriff, who made no levy under the same, but returned them nulla bona. Root & McBride Brothers claimed the right to pro rate with Pischel in the proceeds of sale of chattels levied on under the Pischel writ, and notified the sheriff to divide the funds made under said writ in accordance with their claim, which he refused to do. The sale realized a sum just equal to the Fischel judgment and costs. Judgment fdr a proportionate share of these proceeds was demanded. A demurrer to the petition was sustained in the common pleas court. Upon petition in error in the circuit court the judgment of the common pleas was reversed, and the court rendered final judgment for Root & McBride Brothers.

      Burton & Lake, for plaintiff in error.
    Squire, Sanders <& Dempsey, for defendants in error.
   Spear, J.

The question argued is as to the sufficiency of the petition.

In support qf the complaint of error in the judgment of the circuit court it is urged that the right to pro rate did not exist because goods are not subject to be applied in satisfaction of a writ until seized in execution-; the money must be made upon the writ, and in order to make money upon a writ, a levy is requisite. Here there was no levy of the Root & McBride Brothers writs; the assignment for the benefit of creditors left nothing for these writs to .be levied 'upon, the title having passed completely to the assignee, subject only to the lien of the prior levy. Hence, the sheriff was justified in refusing to make a levy, and in returning the writs nulla bona, and therefore is not liable in any form of action to Root & McBride .Bros.

Oii the other hand it is contended that a levy of the Root & McBride Brothers’ writs was not necessaiy; and that while it may be true, as a general proposition, that an assignment for the benefit of creditors conveys to the assignee all property of the debtor and rights of action existing at the time of the assignment, yet this concession does not warrant the conclusion that the property in the possession of the sheriff by virtue of his levy under the Pischel execution passed to the assignee subject only to the lien of that levy, for this claim assumes that the property remained subject to the debtor’s right of control after it had been taken from him by the act of the sheriff in making the levy and taking possession, which ■proposition is not true, as it utterly ignores the effect of section 5382, Revised Statutes.

The section referred to is as follows :

“When two or more writs of execution against the same debtor are sued out during- the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor are delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all execu-’ tions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands; in all other cases the writ of execution first delivered to the officer shall be first satisfied; and the officer shall indorse on every writ of execution the time when he received the same; but nothing herein contained shall be so construed as to affect any preferable lien which a judgment on which execution issued has on the lands of the judgment debtor.”

Omitting that' which does not affect the present case the provision is: “When two or more writs of execution against the same debtor are sued out during the term at which judgment was rendered, no preference shall be given to either of such writs; but if a sufficient sum of money’be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands.”

The section, as we find it in the Revised Statutes, was in substance enacted by the act of February 4, 1824, 22 Ohio Laws, 108, entitled ‘ ‘An act regulating judgments and executions,” and has' been the subject of frequent review. It is observed by Hitchcock, J., in Patton v. Sheriff, 2 Ohio, 396, referring to the first clause of the section, that the legislature “intended to provide for eases where there were two or more judgment creditors, having equal rights and where there is no priority of lien, as when the judgments are recovered in the same term.” This holding is quoted as established law in Riddle v. Bryan, 5 Ohio, 49, and is carried with approval in the notes to Swan’s Statutes, 1841, at page 470, and the notes to Swan's & Critchfield’s Revised Statutes, at page 1069. Further like construction has been given in Wilcox v. May, 19 Ohio, 408, and Babbett v. Morgan, 31 Ohio St., 273, which holding relieves us from the necessity of entering into any reasoning to establish this construction of the statute. The work is already done to our hand. From this it follows that the judgments of Root & McBride Brothers, having been rendered at the same term with that of Fischel, have equal rights with that judgment. Equal rights without preference, looking to pro rata distribution, is the controlling idea embodied in the clause. This purpose is clearly. expressed in the words, ‘ ‘but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands.” Having thus been accorded equal rights with the judgment of Fischel by the statute, it was not within the power of the debtor to annul the statute bj^ an assignment, nor of the sheriff by a refusal to be governed by its provisions. This the sheriff sought to do by neglecting a levy and returning the writs nulla bona. He now assigns the absence of a levy as a reason why the subsequent executions cannot pro rate. This comes with an ill-grace from one who, if this last proposition be sound, was negligent of his duty,” inasmuch as it is an attempt to take advantage of his own wrong, and should be condemned for that reason. Nor was the ease altered by the fact that a levy was not demanded. The execution creditors did their whole duty when they delivered their executions into the hands of the sheriff, with a statement of their claim. It then devolved upon him to properly execute the writs.

It is insisted that, by virtue of sections 5381 £383 and 5375, a levy was necessary. True by force of 5381, the writ commands the officer, ‘ ‘that of the goods and chattels of the debtor, he cause to be made the money specified in the writ. But how could the officer make the money on the later writs so long as, by the first writ commanded, he was bound to make it on that writ, and there was no surplus? Besides, the final purpose of section 5382, as its terms import and as we have already found, being distribution, it could make no practical difference on which writ the money was made. True, also, by section 5383, “an officer to whom a writ of execution is delivered shall proceed, immediately, to levy the same upon the.goods and chattels of the debtor,” and by section 5375, “goods and chattels of the debtor shall be bound from the time they are seized in execution.” But there had been a seizure of the goods, and they were “bound,” for every practical purpose, by virtue of that seizure, for it must be held, in order to avoid giving preference to either writ, to have inured to the benefit of the later writs. How else could they be accorded equal rights? If so, then why a new levy? If any useful result were expected from such levy, it would seem proper to follow it by at least a new inventory if not a new appraisal and notice of sale, all of which would clearly be useless ceremony and entail needless expense. It seems reasonable to conclude that, .where no additional goods or chattels to those already in the hands of the officer are desired to be reached, an additional levy is not contemplated by section 5382. The goods and chattels sought to be subjected to the judgments having already been seized and thus brought within the control of the law, and so made subject to sale and the proceeds to be appropriated in accordance with section 5382, the steps next to follow would be a sale under the first execution (unless sale had already been made), and distribution of the money. This distribution being required to be “to the several creditors in proportion to the amount of their respective demands,” it would clearly follow that this course of distribution could not be defeated or disturbed by an assignment by the judgment debtor. It was not for him to say that Fischel should have the entire proceeds, and Root & McBride Bros. none. The property had passed from his control, and the rights of the assignee could be no higher than those of his assignor.

True, the assignment law, section 6351, provides that the probate court shall order the payment of liens upon the property sold according to priority, and that this means p riority at the time of the assignment. But this implies that the property may be sold by the assignee, which is not the situation in our case. Besides, we have already found that the lien of the later judgment is, by force of sec ■ tion 5382, and the levy of the first execution, made equal with that in all respects as to the property seized. The levy made on the Fischel execution having covered the entire property seized before the assignment was made, nothing was left for the assignment to fasten upon. See reasoning of Welsh, J., in Babbett v. Morgan, supra, at page 277. Any other construction would result in giving preference to one of the creditors, and would thus permit a failing debtor to defeat the plain well-established rule of the statute.

Attention has been called to Johnson v. Sharp, 31 Ohio St., 617; Lindeman v. Ingham, 36 Ohio St., 1; Sayler v. Simpson, 45 Ohio St., 141, and Bettz v. Snyder, 48 Ohio St., 492. An examination of these cases fails to disclose any holding inconsistent with the foregoing conclusions.

In the brief, complaint is made of the form of judgment rendered by the circuit court. But this point . was practically withdrawn at the oral hearing, and we therefore do not consider it.

The cases of Adolph Mahrer v. Root & McBride Bros., which follow this upon the docket, involve practically the same questions here disposed of, and no separate report is deemed necessary in either of those'cases.

The conclusions announced require an affirmance of the judgment of the circuit court.

Judgment affirmed.

Shauck, J., dissents.'