author: Spalding, J.

text:
    *Lessee of Nahum Ward v. Benjamin Racer.
    A deed made in 1835, "by two surviving executors of a person who died seized of the premises in 1804, will not prevail against an adverse possession of more than twenty-one years since the death of the last devisee.
    If the deed of the 1835 has relation hack to the “ inception of the power,” so as to defeat the estate in the heirs of the last devisee, it will he deemed in law to give a right of action to the lessor of plaintiff at the same early-period.
    Error to the common pleas of Washington county.
    The action in the common pleas was ejectment.
    Nahum Ward claimed title to the premises sought to bo recovered, under a deed dated December 10, 1835, made by the two surviving executors of Pascal N. Smith to said Nahum Ward. Ho proved on the trial in the court below that Pascal N. Smith died seized of the land in controversy, in the year 1804, having made a will which hears date March 20, 1801. By this will the testator gave one-third of all his estate, real and personal, to his wife Hester, and directed that the residue be equally divided between his four children, Harriot, Augusta, William Temple, and Hester Georgiana. Ho directed, further, that if any of his said children should die before they arrived at the age of twenty-one years, or without issue by lawful marriage, then their part or parts should go to the survivors or survivor, their heirs and assigns forever. And in the event that all his said four children should die before they came to be twenty-one years of age, without having issue by lawful marriage, then he directed that the whole estate, thus devised to said children, should go to his said wife Hester, and to her heirs and assigns forever.
    He made his wife Hester, and his nephews, Benjamin Strong and John Aspinwall, the executors of his last will and testament, and empowered them, “at their discretion, to make sale of any real or personal estate that he might leave at his decease.” *It was proved on the trial, that all of said children named as devisees in said will, except Hester Georgiana, died prior to the year 1816 without issue, and under the age of twenty-one years; and that the said Hester Georgiana died in the year 1816 without issue, but above the age of twenty-one. The widow of said testator, Hester Smith, died in the year 1823, having survived all the children. The plaintiff also gave in evidence deeds of conveyance to him from some of the heirs at law of the said Hester Georgiana, dated in the year 1835 and 1836, and proved that all the interest and estate which said widow died seized of in the premises, had been vested in him by the deeds of trustees and devisees of said Hester, made in 1835. The plaintiff further proved that neither the said Pascal N. Smith, nor his executors, devisees or widow, nor either of the grantors in said deeds to said Nahum Ward, had ever been in the State of Ohio, but, on the contrary, had at all times resided out of said state.
    The defendant proved that ho and those under whom he claimed and held possession, had been in the actual, adverse, notorious, and continued possession of the premises in controversy, ever since the year 1811.
    The court of common pleas gave judgment for the defendant. The plaintiff’s counsel moved for a new trial, and the motion was overruled. Exceptions were taken and this writ of error brought to reverse the judgment.
    C. B. Goddard, for plaintiff
    This suit was bvonght within the time limited to non-residents to avail themselves of their disability, under the statute of limitations. It is claimed, and was so adjudged below, that the exceptions of the statute will not avail the plaintiff, because, notwithstanding the power in the will, the estate was devised to certain children, whose death interrupted the disability, and that upon the principle of the cases of Carey v. Robinson, 13 Ohio, *181, and Whitney v. Webb, 10 Ohio, 513, the statute commenced running twenty-one years before the commencement of this suit.
    Without impeaching the doctrine of these cases, I have two answors to the attempt to apply thorn to the present case :
    I. Upon the execution of the deed to Ward, his title relates to the inception of tho power, and divests the estate of the devisees.

      II. The plaintiff claiming under the executors, against whom the statute never ran, it can not run against him, no matler what might be its effect, if he claimed through the devisees. Hill on Trustees, 503, 504, pt. 3, div. 1, ch. 3; Wells v. Prince, 9 Mass. 508; Wallingsford v. Hearl, 15 Ib. 471; sec. 17, Act of 1831, 3 Chase, 1788.
    The question whether the power could be executed after so great a length of time, never can arise between the grantee under the power and a stranger to the estate.
    This case has been in the Supreme Court before. The common pleas once refused to permit the deed to be read in evidence, because executed thirty years after the death of Smith. This was reversed by the Supreme Court, and on the last trial the deed was received in evidence.
    Charles R. Rhodes, on same side,
    upon the first proposition maintained in the preceding argument, cited Sug. on Powers, 331, 332; Middleton v. Crosts, 2 Atk. 661; Bradish v. Gibbs, 3 Johns. Ch. 549. These authorities hold that the estates created by the execution of a power, take effect in the same manner as if created by the deed which raised the power. And such estates divest the estate of the devisee, heir, or assigns. Willard v. Nason’s Adm’rs, 5 Mass. 241; Sug. on Powers, 337, sec. 338.
    The extinguishment of the power is not presumed from the lapse of time. Pickering v. Lord Stanford, 2 Vesey, Jr. 272; McDowell and wife v. Chambers, 3 Johns. Ch. 137; Stackpole v. Stackpole, 4 Dow. 209; Huett v. Fletcher, 1 *Atk. 467; 2 Phil. Ev., Cow. & Hill’s Notes, 347, ch. 7, sec. 2, Potter v. Litcomb, 7 Greenl. 303. The defendants can not impeach the execution of the power. 3 Johns. Ch. 583; 1 Ves. 106; 2 Atk. 33; 2 Ves. 466 ; 1 Atk. 463; 4 Bro. 136 ; 2 Ves. 269; 3 Atk. 235; 14 Ves. 353; 17 Ib. 152.
    Simeon Nash, for defendant:
    I. The plaintiff is barred by the statute of limitation. The cause of action accrued in 1811; the then holders of the legal title died in 1816, and 1823; suit brought in 1846; statute began to run as to two-thirds in 1816, and as to one-third in 1823; twenty-one years expired in 1837 and 1844. 10 Ohio, 513; 13 Ohio, 181.
    II. Nor can the fact that the plaintiff claims under a deed from the executors of P. N. Smith alter the result. The statute of limitations operates against the person holding the legal title, whether he hold such a title in his own right oras a mere trustee. If he be barred, so are all those having equitable interests in said lands. Wore not this the case, the devisees in this will who are bound, could yet obtain pay for their land through a sale by the executors, under this power ; a convenient way of getting round this wholesome statute. Smilie v. Buffle, 2 Barr (Pa.), 52 ; Williams v. Otey, 8 Humph. 563; 7 U. S. Dig. 320, sec. 31; Ib. 352, secs. 26, 27. Vide also Dow v. Warren, 6 Mass. 326; Angell on Limitations, 48; 2 Brod. & Bing. 217.
    III. The lessor of plaintiff is barred, because he is not within the saving clause of the statute. It is true that he claims to recover, because his grantor comes within the saving of the statute; and such seems to bo the opinion of the court in 13 Ohio, 181.
    That case was rightly decided; that was an action on a personal contract, and must therefore be governed by that portion of the statute which relates to such contracts. There the intestate *had never been in the state. The administrator, came hero to enforce his rights, and if the intestate was within the saving clause, so that ho could have maintained an action, so was his administrator. Hence-the administrator could not bo barred until ho came into the state. This can only bo the case, however, when a foreign administrator is empowered to sue by the law of the state where the debtor lives. This part of our statute is like the English statute; in neither is there any saving in favor of heirs, executors, or administrators. Strithart v. Graeme, 3 Wilson, 145 ; 14 Mass. 203. The decision in 13 Ohio, 181, did not necessarily call for any comment on the opinion delivered in the case in 10 Ohio, 513.
    But how stands the law in relation to actions for the recovery of real estate ? The English statutes have a saving in favor of heirs, as well as in favor of the person in whom the right of action was at the inception of the adverse possession. Our statute has no saving in favor of heirs nor grantees. In England, a grantee acquired no title, where the land was hold by adverse possession; hence there, no one but the holder of the legal title at the time the right of action accrued could maintain an action. Hero, however, such grantee may maintain an action at the time of the conveyance to him.
    In 13 Ohio, 181, in argument it is assumed that where a disability exists at the time the adverse possession begun, the limitation fixed in the statute does not begin to run until that disability is removed, or the party dies. This is not correct. The true idea is, that the statute is a bar against all, saving those who can bring themselves expressly within some one of its saving clauses.
    By the one construction, any person can protect himself against the operation of the statute by proving that the person to whom the right of action first accrued, was within the saving of the statute; and that his death did not occur, or his disability was not removed within twenty-one years. By the other construction, the statute is a bar, unless the party suing *can show that he himself is the person named in the statute, in whose favor a saving is made ; and as our statute has no saving except in favor of the person first entitled to sue, the holder of the legal title at the time the adverse possession originated, heirs, grantees and devisees, are absolutely barred, if such person has permitted twenty-one years to elapse before making such grant, or before his death. To illustrate this view of the question : The plaintiff first proves a legal tille to the premises, and then rests; the defendant then proves an adverse possession for over twenty-one years, and then he rests; and in this state of the evidence he is entitled to a verdict. To do away with the effect of this adverse possession, the plaintiff must now show that he comes within the saving of the statute. The statute provides simply for saving the rights of a person, who, at the time his cause of action accrued, was a feme covert, insane, an infant, imprisoned, or beyond seas; and these persons have twenty-one years given them to sue, after the removal of such disability, or after coming into the state. There is hero no saving in favor of his or their heirs, devisees, or grantees; and how can the court then say that these parties, not named, can take advantage of a privilege reserved to another? The English statute and the statutes of all the old.states contain a saving in favor of the heir, giving him ten years after the death of his ancestor under disability, to bring his suit. Our statute contains no such saving, and is it not legislation for the court to insert, by construction, such a saving, not only in favor of heirs, but of grantees too?
    The question in 10 Ohio, 513, was not one of “tacking ” disabilities, but of a construction of our statutes; whether parties not named, not coming within the saving clauses thereof, could be, by construction, brought within them; whether the omission of the clause in relation to heix’s should be added to the statute, in such a way as to give them, and not only them, but grantee3 and devisees, twenty-one years to bring suit after the death of his or their ancestor, devisor, or grantor, within the saving clauses of the statute.
    *Sueh is the true construction of the statute. “ It has been shown,’’says Angelí, in his work on Limitations, p. 518, sec. 1, “ that unless persons are under the disabilities expressly mentioned in the statute, they can not be exempt from its operations by judicial construction; and so it would seem by the civil law, that prescription runs against all persons, without exception, unless they are included in somo exception.”' This question was decided under the statute of 32 Henry YIII. The saving clause was in favor of the first party, and nothing was said about his heirs, as in the statute of James. Brook, in his reading upon this statute of Henry YIII, says (vide appendix to Angelí on Limitations, 1 ed. 018, note 5, of edition 1846): “A man seized in right of his wife, is disseized, or makes a discontin, and livoth sixty one years, he and his wile die, tho heir of tho wife should not have action, claim, nor enter.” The limitation under this statute was sixty years; sixty-one years had elapsed when husband and wife died. Now, if the statute did not begin to run until the death of the wife, then the heir of the wife was not barred; but as tho statute liad no saving in favor of the heir, it was held that he was barred.

      *The fundamental notion of the statute is, that it runs against all not coming within some saving clause; and that the heir, unless named in the statute, can not protect himself by showing that his ancestor died under disability ; and that the time of limitation has not run out since his death. Hence the-statutes of James and the old states, expressly provide that the beir may bring his suit when his ancestor dies under a disability. Our statute is the only one I can find in which this provision is omitted. But Ward, in this case, is not even an heir—he is a mere volunteer grantee—one in whose favor there is no exception; There is no clause in the statute which protects him from its operation.
    I hope the coart will reconsider the dicta in 13 Ohio, 181.
    IV. The plaintiff does not show any title to the premises. The court will not reverse the judgment if it appears from the record that plaintiff has no title. This title is defective.
    1. Because the power in the will is a naked power to three by name, and one having died, the survivors can not execute it. 1 Ohio, 232; 2 Ib. 127; 8 Cow. 544 ; 4 Hill, *514; 1 Comst. 358 ; 13 Met. 220; 8 Humph. 563.
    But it is claimed that section 14 of the act of 1831, relating to wills, 3 Chase’s Stat. 1778, avoids this objection by retrospectively declaring that such survivors may execute the power. This statute does not apply to such a power as this: 1. Because it is a naked power, not coupled with a trust; and, 2. Because it is a dsscretionary power. The statute says: “ Where lands are directed or devised to bo sold." These lands are not directed, to bo sold. The executors aro simply empowered to sell at their discretion. This is not such a power as a court of equity would compel the rxecution of; that is only done when the power is coupled with a trust, the execution of which trust can not be carried out without the exercise of the power. 2 Story’s Eq. 321, sec. 1061; 1 Ib. 181, 169; Sugden on Powers, 392, ch. 6, sec. 3; Cole v. Wade, 16 Ves. 27.
    This statute, if construed as is claimed, would be unconstitutional, as divesting a vested right. By the death of the devisees in 1816 and 1823, the title had become vested in collaterals absolutely; the power having lapsed in 1823 by the death of Mrs. Smith, one of the executors. Now, can the legislature, by law, rovivc this lapsed power,' and authorize the surviving executors to sell and convey, thereby divesting the title of these collateral heirs? 3 Blackf. 275 ; 3 Green 1. 291; 9 Pick. 259; 15 Ib, 435 ; 7 Johns. 475; 12 Ohio; 16 Ohio, 599.
    2. This power was lapsed because the persons for whose benefit it was created were, dead. The only use that could have been made of this was to pay debts, and facilitate the partition of tho real estate. Tho debts must be presumed paid alter thirty years, and the devisees were all dead, the last child dying in 1816, and the widow in 1823; the children without issue, and the widow without ever having married again. A power can not be executed after the person for whose use it was created is dead. 3 Day, 388; 3 Ib. 384.
    *3. The power was lapsed because it was a discretionary power; and such a power can be executed only by the parties named—can never survive. Willis v. Cooper, 2 Ohio, 124; Colo v. Wade, 16 Ves. 27; 5 Met. 462; 13 Ib. 220.

       Mr. Nash has furnished, since the decision of this case, the following note, to bo added to his argument:
      “ I have examined Sir Kobert Brook’s reading upon the statute of 32 Henry YIII, cap. 2. That statute had a saving in favor of the next heir of one who was within the saving at the time of the passage of tho statute, or the feast of Ascension, 1546; but there is no saving in favor of the heir of any other person dyiug undo/ disability. Keeping this view of the statute before the mind, one will ho able to understand the following rulings, extracted from the said reading of Justice B rook :
      “ Two joyntenants have cause of a writ of entry upon the ancient limitation, tempore statuti, whereas one was imprisoned tempore statuli, and after he which was imprisoned dieth, the other shall not have action within six months upon tho ancient limitation, notwithstanding this statute,
      “Because the ancient limitation was expired at Ascension, 1546, and he which survived was not imprisoned, and he is not heir to the other, and so not aided.
      “A man of non sane memory at tho time of the statute, or an idiot, had cause of action, tempore statuti, and dyeth after Ascension, 1546, his heir shall never have an action,
      “Because he is not aided by the statute, and the ancient limitation is expired.
      “A man which had cause of action upon the ancient limitation, had issue, two sons, and dyeth before the statute ; the eldest is possessed in France at the time of the statute, and the youngest is within age at the time of the statute, and after the eldest is doraigned, and cometh bache out of France; then the youngest which cometh at full age, nor the eldest, shall not have an action with the sixe yeares upon the ancient limitation,
      “ Because the statute doth not provide for those which were beyond sea, unlesse they had cause of action at the time of the statute, and a man in religion ad not cause of actio n at the time of the statute, and the youngest can not have it, because yet he is not heire.
      “A feme covert, at the time of the statute, had cause of action ancestrall upon the ancient limitation, and after Ascension, 1546, she and her husband bro’t an action upon the ancient limitation, within a yeare then following, etc., they shall not have action, notwithstanding this provision of the statute,
      “Because the wife is aided within six yeares after discontinuance, but not husband and wife after Ascension, 1546, the coverture containing, because the ancient limitation is expired.”
      These rulings show that the plaintiff in any suit is barred, unless he can bring himself within some one of the savings of the statute; it will not answer to show that some other person is within the statute.

   Spalding, J.

This action was instituted against the defendant in 1846. Tn 1811 the adverse possession began and was uninterrupted m the defendant and those under whom he holds, until the bringing of this suit.

When this adverse possession commenced, it seems that the owners of the land resided out of the state. A portion of them, were infants, but it seems unnecessary to dwell unon that fact, as it will not change the result.

In the year 1816, wo will suppose that the entire fee of the land vested in Hester Smith, the widow of Pascal N. Smith, on the death of the last child, Hester Georgiana. I say we will suppose this, as it seems to be taken for granted by counsel on both sides, that Hester Georgiana took no more than a life estate in the premises, although she lived to bo more than twenty-one years of age.

At this period, 1816, the possession would not avail the defendant, as the widow, Hester Smith, in whom the whole title centered, was a non-resident and protected by the exceptions to the statute of limitations.

In the year 1823, however, Mrs. Smith died, and at the instant of her death the statute commenced running against all persons claiming under her, and would, in the absence"of any other claim> afford to the defendant ample protection, as more than twenty-ono years had elapsed from the removal of the disability to the commencement of the suit. Carey’s Adm. v. Robinson’s Adm’r, 13 Ohio, 181. But the plaintiff, feeling the inconvenience of sundry decisions of this court, that “cut up by the roots” the doctrine of “tacking” disabilities, to avoid the statute of limitations, has concluded to rest his claim upon the executors’ deed of December 10, *1835. It is then objected that in 1816 the last limitation had fallen in, and the whole estate had become absolute in Hester Smith and her heirs. To avoid this difficulty the ingenuity of counsel has started the proposition that, upon the execution of the deed by the executors to Ward, his title relates back to the inception of the power, and divests the estate of the devisees.”

I am by no means prepared to regard this pretended execution of power as a serious matter, under the circumstances, yet I am content to follow in any path wherein counsel may choose to lead.

If the title of Ward, under the deed, relates back to the inception of the power, so as to defeat the estate of the devisees, it relates back for another purpose equally fatal to the plaintiff’s right of recovery, with the vesting of the estate in the heirs. It relates back so as to given, right of action to Nahum Ward, at the time defendant’s possession commenced, in 1811. As he is not shown to have been under disability, by reason of infancy or non-residency, his right of action is barred by the statute,,and the ruling of the court below was correct. The judgment will be affirmed.


source: Caselaw Access Project

author: Caldwell, J. Spalding, J.,

license: Public Domain

text:
    *Lessee of Simeon Jennings v. Robert Wood.
    Where a purchaser of land hands his deed to the recorder, and the recorder, by mistake, enters the name of another person as the grantor in the deed, in place of the true grantor, the deed is not duly recorded, and will not be notice to a subsequest purchaser without actual notice: but such purchaser will hold the land as against the title of the former purchaser.
    'That a party can only be chargeable with constructive notice from the record, when the record would give him actual notice.
    That where a mortgagee purchases the mortgaged premises, and receives a deed in fee simple, paying off a part of the consideration by the delivery of the note, which the mortgage was given to secure, to the maker, such mortgage is thereby paid off and extinguished, and has no effect either in law or equity, although it may appear uncanceled on the record.
    Error to the Supreme Court of Stark county.
    The original action in the common pleas of Stark county was ejectment. The declaration was filed March 26, 1849, with the sheriff’s return of service of that date.
    The facts are all stated in the opinion of the court, and in the dissenting opinion of Spalding, J.
    G. W. Belden and J. J. Brooks, for plaintiff:
    The plaintiff was entitled to recover—
    I. By his deed of June 8, 1844, he is shown to have paramount title.
    II. Ho is shown to have paramount title by his three mortgages.

    I. As to title under deed.

    This is perfect, and should prevail over defendant’s deed of April 4,1845, recorded March 30,1849.
    But defendant asserts :

      1. That the deed of plaintiff is inoperative, because not recorded ; or,
    2. If recorded, it was so erroneous as not to give notice of plaintiff’s title.
    *Ab to the first of these assertions, the case of Northrup’s Lessee w. Brehmer, 8 Ohio, 392, is against him. “Where two deeds are made by the grantor to different persons for the same land, at different times, and neither is recorded within six months after execution, the second deed, if executed before the first is recorded, shall prevail in the absence of all notice.” The certificate of the recorder indorsed on the original deed, was in evidence with the deed, -which shows that it was recorded June 19, 1841, and this is the only evidence on the question, except that Wood introduced Jennings’ answer to a bill in chancery, in which Jennings says: “Said deed on June 19, 1844, he deposited with the recorder for record, and that it was recorded on that day.”
    The introduction of a copy of a deed, purporting to be made by Samuel Granger, of same date, does not disprove the fact, already proved, that Lemuel Granger also made "a deed.
    As to second assertion : There is no proof that the deed was erroneously recorded. But if it were, it is immaterial. The only error claimed is, that the recorder wrote the Christian name of Granger Samuel, instead of Lemuel. The law of notice is not technical, but equitable. It is not necessary that the notice should be beyond all cavil. The deed, as recorded, is sufficient notice.
    But Jennings did all the law required, by depositing his deed with the recorder.
    II. As to plaintiff’s title under the mortgages.

    The plaintiff was entitled to succeed under his mortgages. 16 Ohio, 125.
    The mortgage title was not merged in the deed. The mortgages conveyed the legal title, the deed the equity of redemption. Tripp v. Vincent, 3 Barb. 613 ; Dayton v. Russell, 17 Conn. 146; Vanderkemp v. Shelton, 11 Paige, 28; 2 Met. 26; Campbell v.Knight, 11 Shep. (Me.) 332. The mortgages could only be released by the parties, and that has never been done.
    *W. K. lira am, on same side:
    When Wood claims that the mortgage title was merged in the . legal title, he should therefore be estopped from contesting that the legal title is good for all the purposes of the conveyance.

      Griswold & Hazlett, for defendant:
    I. The plaintiff could not recover by virtue of the mortgage, which became void by payment of the note it was given to secure. Ejectment would be defeated by proving failure of consideration of note, release, or the statutory defense that the debt did not accrue within fifteen years; a fortiori, by payment.
    "When Jennings took a deed his title was perfect for six months, and if he had lost it by his own neglect or that of the recorder, he (Jennings) must bear the loss.
    The evidence shows a payment of the note secured by the mortgage.
    II. Can 'the plaintiff recover upon the deed of June 8, 1844? Wo claim not. There has been no such record of the deed as operates as notice to a subsequent purchaser. The record is only notice of what is in the deed. The name is the most important part, as title is traced by it. 1 An. U. S. Dig. 158, sec. 107; 1 Sup. to U. S. Dig. 534, sec. 355; 2 U. S. Dig. 37, sec. 263.
    It does not injure the title of a subsequent purchaser, that he has notice of the prior c'onvoyanco, when he puts his deed on record. The notice mentioned in the statute has reference, not to the time of record, but to the time of purchase.

   Caldwell, J.

The facts of this caso are substantially as follow: On April 16, 1842, Lemuel Granger, who was then the owner of the land of controversy, mortgaged it to Simoon Jennings, to secure the payment of a promissory *note for $273, payable in three years from date. On Juno 8, 1844 (the mortgage debt still existing), it was agreed between the parties, that Jennings should purchase the mortgaged promises, for the sum of $310 ; that the mortgaged debt, so far as it went, should be taken in consideration of the land; and that the balance should bo paid in money. In accordance with this agreement, Granger conveyed the promises to Jennings, but the mortgage was not entered satisfied on the record. The deed, which bears date Juno 8, 1844, was recorded June 19, 1844. The recorder made a mistake in the record of the deed, in the name of the grantor, recording the name as Samuel Granger, when the name in the deed, and the true name, was Lemuel Granger.

In June, 1846, Jennings made a lease of the land to Granger, who still remained in possession, for three years ; this lease Wood surrendered to Jennings in Juno, 1847.

On April 4, 1845, Lemuel Granger conveyed this same land to the defendant, Robert Wood ; the deed was recorded on November 6, 1845 ; in the record of this deed, the recorder made the same mistake that was made in the case of Jennings’deed, recording the name of the grantor as Samuel, in place of Lemuel. Granger remained on the premises until the summer of 1847, when he left the country. Wood, the defendant, went into possession of the premises a short time before Granger left, and has been in possession of them ever since. Jennings has never been in actual posof the premises. There is no evidence that Wood ever had actual notice of the conveyance to Jennings, or of his having any claim on the property. Indeed it would appear that Jennings was not free to disclose his claim.

Lorenzo Roath, who lives in the neighborhood, a witness who was sworn on the trial, states that he had a conversation with Jennings shortly before Granger left; that Jennings asked him if Wood had purchased the property, and that he inquired whether or not Wood was making improvements on it. He says Jennings did not set up any claim to the property; he states *that Wood found out Jennings’ claim as soon as any one else; but that he (Wood) did not hear of it until after Granger had left.

Jennings-himself states, in an answer to a bill in chancery, filed against him in reference to the same matter, that the first conversation he had with Wood, was in the spring of 1847, (when the subject of Wood having purchased the land, was matter of conversation); that he did not say anything to Wood about his claim on the land, as he thought it more prudent to examine into the facts, examine the records, etc., than to make known his claim, to one claiming adversely, and that therefore he refrained from making known his claim—apparently, as it would seem to us, acting on the presumption that Wood was not acquainted with his claim to the property. This is unimportant, however, as there is no evidence (as we have before remarked) going to show that Wood had actual notice of Jennings’ title, and it is for the opposite party to prove that fact.

The court of common pleas charged the jury that the record of the deed of Simeon Jennings was no notice to Wood of the title of Jennings to the lands in controversy, such as would prevent his (the said Wood’s) title attaching to said lands.

The jury returned a verdict for the defendant; a motion was made for a new trial, which was overruled, and judgment entered on the verdict. It is assigned for error, that the court erred in not granting a new trial, and also in the charge to the jury. The error assigned to the charge of the court to the jury, presents the principal question in this case.

Was, then, the record of Jennings’ deed such a record as to charge Wood with legal, or constructive notice of Jennings’ title?

If Jennings had delayed to put his deed on record for more than six months, his title would have not have availed him against a purchaser, who had purchased subsequent to that time, without actual notice of the existence of his title. And why? *Because he had failed to put on record that notice which would enable every person, by the ordinary inquiry—by an examination of the records—to ascertain its existence. The obligation rests on the party holding the title, to give the notice. He controls the deed ; he can put it on record or not, at his pleasure. If from any cause he falls short of giving the legal notice, the consequences must fall on himself. It is his own business, and he must suffer the consequences of its being imperfectly performed. Did Jennings have notice of his title placed on record? He did not; the deed put on record purported to be a deed from a different person. It is only by the names of the parties conveying, that a claim of title can be traced. Take the title in controversy as an illustration.

If a person had gone to the record to ascertain the situation of this title; if, commencing at the source of titles, he had traced it down from grantee to grantee, until he should have found that the title had passed to Lemuel Granger, then all that he would have had to do to ascertain whother the record showed any conveyance from Lemuel Granger, would be to examine the index, to ascertain whether any conveyance had been made by Lemuel Granger; if none such appeared, then the record would give notice of no such conveyance. It would give him notice, however, that the title was still in Lemuel Granger.

The reason that a party is chargeable with constructive notice, is, that by an examination of the record, he will have actual notice. The deed actually shown on record, was by a person who had nothing to do with the title, and was, to all intents and purposes, a different conveyance from the one by which Jennings claims. But it is said that Jennings had a good deed, and that he had done all that it was necessary for him to do; that the mistake was that of the recorder, and that he should not suffer for the default of the officer. It may be a hardship on Jennings—it no doubt is; but here one of two innocent persons must suffer ; and whenever this is the case, the rule is, that *the misfortune must lie where it has fallen—it must rest on the person in whose business, and under whose control it happened.

The case of Sawyer & Rogers v. Adams, 8 Vt. 172, is very much in point in this case. In that instance, the town clerk had recorded a deed in a book that had ceased for a number of years to be a book in which deeds were recorded, and failed to put the names in the index. In that instance, as in this, the recorder made the usual entry of the record on the back of the deed. The court decided that the deed could not be said to be recorded, and consequently it was no notice to subsequent purchasers. The court say: “ In such cases the purchaser may be wholly free from fault or negligence. He may deliver bis deed to the proper officer, and it may be returned to him as recorded; but, through accident or design, it is not truly recorded. Subsequent purchasers or creditors, having no other means of knowledge of the contents of the deed than by resorting to the records, can not be considered as having notice of any other conveyance than such as appeared on record.” The case of Sawyer v. Crague, 10 Vt. 555, is of a similar character. There the deed was duly presented for record; but the clerk, by mistake in the description of the lot, put the words “west half,” in place of the words “east half,” in the record; the court held that no record had been made of the deed, and that a subsequent purchaser took the property without notice.

But it is contended that Jennings had a right to recover, by virtue of his mortgage; that that mortgage still remains on record uncancelled, and that the note secured by it fell due in 1845, before the commencement of the suit; that the conveyance to Jennings of the fee was merely a conveyance of the equity of redemption, and that Jennings still bad the right to set it up to protect himself against subsequent purchasers. The payment of the mortgage debt, both in equity and at law, operates as an extinguishment of the mortgage.

But it is said that the mortgage debt was not paid. It is true the money was never paid; but that which the parties ^treated as its equivalent was paid. A deed in fee simple was given for the property. Part of the consideration was paid in money, and the balance by Jennings delivering to Granger the note secured by the mortgage; and this was done before the note became due. When the note was thus paid off, we can not see how any vitality could remain in the mortgage that was given solely for the purpose of securing the payment of the note. The debt of Granger had ceased to exit was, as we think, paid, and if the mortgage was not entered cancelled, it should have been. Nor was there anything in the sale of the property that went to vitiate it. Jennings received a,complete title for the property, and if his deed had been duly recorded, his title would have remained perfect.

As an item of notice on the record, the mortgage merely gave notice of its own existence; the existence of no other deed could be inferred from it. We think the court of common pleas ruled correctly, both in the charge to the jury, and in overruling the motion for a new trial.

The judgment of the Supreme Court will therefore be affirmed.

Spalding, J.,

dissenting.

This is a writ of error to the Supreme Court of Stark county, and the error assigned is, that the court on the circuit affirmed the judgment of the common pleas, rendered upon the following state of facts, as made known by the bill of exceptions:

The action was ejectment, tried at the May term of the common pleas of Stark county, A. D. 1851.

The plaintiff, to sustain the issue on his part, produced his evidence as follows:

" 1. A deed from Lemuel Granger to Simeon Jennings, for the premises in question, bearing date June 8, 1844, with indorsement thereon by the recorder of Stark county, in these words:

*“Received June 19, 1844. Recorded same day in vol. 31, p. 358.
“ John Bower,
Recorder for Stark Go., Ohio.”

This indorsement by the recorder was admitted in evidence without objection.

Accompanying the deed just mentioned, were the depositions of the two subscribing witnesses, proving its execution, etc., by the grantor.

II. A transcript of the records of deeds in Stark county, showing what purported to be a conveyance of the lands in controversy, from Samuel Granger to Simeon Jennings, and bearing date, June 8, 1844. Received and recorded June 19, 1844.

III. A lease of the premises from Simeon Jennings to Lemuel Granger, dated June 13, 1846, for three years, at $28 a year, rent; with due proof of its execution and acceptance by Granger, and its subsequent cancellation on Juno 12, 1847.

IY. A mortgage deed from the records of the county, of Lemuel Granger to Simeon Jennings. This deed bears date, April 16, 1842, and was recorded the same day. It conveys the premises in dispute to Jennings, with a condition that the deed shall be void if Granger shall pay to Jennings $273, with the interest within three years.

The plaintiff here rested his case.

The defendant then produced the following evidence on his part:

I. A duly certified copy of a deed from Lemuel Granger to Robert Wood, of the same premises, dated April 4, 1845, and recorded March 31, 1849.

II. The answer of Simeon Jennings to a bill in chancery, filed against him by Robert Wood, in the common pleas of Stark county. In this answer Mr. Jennings gives account of the money' advanced by him from time to time, to Granger. He admits an allegation in the bill to be true, that on ^February 6, 1839, said Lemuel Granger executed and delivered to him a mortgage deed of the same premises, to secure the payment of a note for $130, payable in one year from that date, with interest; which mortgage deed was recorded in Stark county records, he thinks, in the book and upon the page set forth in the bill.

He admits that on March 2, 1841, said Granger executed to him a second mortgage of same premises, to secure the payment of a note for $54. And on April 16, 1842, said Granger executed to him a third mortgage of the same lands, to secure the payment of a note for $273, which embraced the amount due on the two first notes.

He says all three of said mortgage deeds were on record in Stark county before said Robert Wood pretended to purchase said land from said Lemuel Granger, and that they were in no wise satisfied, and that no part of the money has at any time been paid, which they were given to secure.

He says, that on June 8, 1844, said Granger applied to him to become the absolute purchaser of the mortgaged premises, and that he did, on that day, purchase the premises at, and for the price of $310; and the amount then due from said Granger being deducted from the purchase price, he paid to him (Granger) the balance in money, and took his deed in fee simple, with the usual covenants, which said deed he deposited, on June 19, 1844, with the recorder of the county, for record.

He denies that any of said mortgages, remaining of record, as aforesaid, have been satisfied or paid in any other way than as herein set forth.

The defendant then called Lorenzo Roath, who testified that plaintiff Jennings was never in possession of the premises, to his knowledge; that Granger left over two years ago, and that Wood was in possession a short time before Granger left; that Jennings asked him if Wood had purchased the farm, and whether he was making any improvements. Witness told him ho was. Jennings, at that time, as witness heard, set up no *title to the premises. Witness did not hear that Jennings laid any claim to the land until Granger had left.

Witness being cross-examined, says: There was no other Granger in that neighborhood—no other man by the name of Granger. Wood found out that Jennings laid claim to the land as soon as any other person, but not till Granger had gone. It is about three years, it may be four, since Granger left.

Soon after Granger left, Jennings informed Wood that he claimed the land. Witness is a brother-in-law of Wood.

Defendant here rested.

The plaintiff then called Joseph J. Brooks, who testified that Granger left the country in the summer of 1847.

He also offered in evidence a duly certified copy of a deed of the same premises, from Samuel Granger to Robert Wood (the defendant), dated April 4,1845, and recorded in the records of Stark county, November 6, ?845.

It was agreed on the trial, that the title to the lands in the declaration mentioned, was in Lemuel Granger, before any of the foregoing deeds and mortgages were made, and that he was the common source of title. This was the testimony, and the whole testimony, in the case.

Among other things, the court charged the jury, that the record of the deed to Simeon Jennings, wherein the name of the grantor is written by the recorder, Samuel Granger, instead of Lemuel Granger, as in the original, was no notice to Wood of the title of Jennings to the land in controversy; that it would not prevent Wood’s title attaching to said lands, under his deed, which was recorded March 30, 1849. An exception was noted to this ruling of the court.' The jury returned a verdict for defendant.

The plaintiff filed his motion for a new trial, for the reasons that: 1. The verdict was against the evidence. 2. The verdict was against the law. 3. The court erred in their charge to the JU1T-

The court overruled the motion for a new trial, and the plaintiff excepted.

*1 maintain that the judgment of the court of common pleas was erroneous, and should have been reversed by the Supreme Court on the circuit, for the following reasons :

1. The plaintiff in ejectment showed himself entitled to recover, when he had introduced on the trial the original deed in foe simple from Lemuel Granger to Simeon Jennings, bearing date June 8, 1844, with proof of its execution, and the certificate of the proper officer, that it had been duly recorded on the 19th day of June, in the same year.

This proof, as I apprehend, rendered the plaintiff’s position impregnable, as against every assault that could be made upon it in a court of law, except through the instrumentality of a prior grant.

It will not do to say that a transcript from the record of deeds, showing a conveyance from Samuel Granger to the plaintiff’s lessor, of the same premises, dated and recorded on the same day, shall divest Jennings of the fee. Non constat but what this was a different instalment. If the defendant would prove it to be the recorded grant under which the plaintiff claimed, the recorder should have been called to show its identity.

But admitting, for the argument’s sake, that which might have been proved, that the recorder, in transcribing the deed of Lemuel Granger to Simeon Jennings, of June 8, 1844, had fallen into the very natural error of writing the name of the grantor upon the records, “Samuel,” instead of “Lemuel,” would it have vitiated the grant? I think not—not even if a subsequent purchaser had been misled thereby, which is hardly a supposable case.

The deed had been made by Lemuel Granger, upon sufficient consideration, and he had delivered it to Simeon Jennings under all the solemnities of the law. The grant was defective in no one particular. As between the parties, nothing now remained to be done. For the benefit of third persons, however, and to protect them against the possible imposition of the grantor, our legislaturo has wisely provided that *“all deeds for the conveyance of lands shall be recorded within six months from the date thereof; and if such deeds shall not be so recorded within the time prescribed, the same shall be deemed fraudulent, so far as relates to any subsequent bona fide purchaser, having at the time of making such purchase, no knowledge of the existence of such former deed; provided, that such deed may be recorded after the expiration of the time herein prescribed, and, from the date of such l’ocord, shall bo notice to any subsequent purchaser.”

The act prescribing the duties of county recorders provides, “that upon the presentation of any deed for record, the recorder shall indorse thereon the date of its presentation ;• and, if required, shall give to the person presenting the same, a receipt therefor, without fee or reward, naming in such' receipt the parties to the deed, the date thereof, and giving a brief description of the promises. And when such deed shall bo recorded, the recorder shall indorse thereon the time when recorded, and. the number or letter, and page or pages of the book in which the same is recorded."

Now, I affirm, that under the laws of Ohio, when a grantee has presented his deed, within six months of its date, to the recorder, and demanded that it be placed on record, and the recorder has returned to him the instrument with his indorsement thereon, showing it to have been recorded, with the time when, and the book and page where it has been done, he has discharged his whole duty to the public, and his muniment of title can not be shaken by any subsequent incumbrancer.

The recording officer is undoubtedly liable in damages to any person injured by his improper conduct. So says our statute. But who, in the case under consideration, is the injured party? It is difficult to tell. The true test to ascertain if any injury has, in fact, resulted from the slip of the recorder’s pen, is to-drive the defendant to his action against that officer. The record was made for his benefit, and to apprise him in due season that the land had been conveyed. If by reason of a mistake in the recording officer, he has *not received from the records that notice of the incumbranco upon the land, which would have put a prudent man on his guard when about to purchase the premises, he ought to recover, in a suit against tho recorder, any amount of money that he may have lost through such want of notice. This would lead to an investigation of the circumstances under which tho second deed was made; and as a preliminary to the establishment of a right of recovery, the second grantee would be required to show that he had applied at the proper office for information in regard to the extent of the incumbrances upon the land in controversy. He might, or he might not, be able to prove that he sought for information as to tho title, before he received his deed and parted with his money. Nothing of the kind appears in the evidence brought to our notice in the present ease. If he did not take tho precaution to apply to the recorder for the necessary information, surely he has not been injured by the mistake that occurred in the record, and the officer should not be hold amenable to any one. If he did apply, and caused a search of tho records to be made, then a source of information would have come within his reach, which I shall’notice under my second head.

My proposition now is, that the deed, being well executed, as between grantor and grantee, and having received the indorsement of the recorder of the county, that he has placed it duly on record within tho time limited by law, can not bo impeached by evidence tending to show a mistake in the record. The case of Beverly v. Ellis & Allan, decided by the court of appeals, in Virginia, in 1822, 1 Randolph, 102, strongly sustains this position.

In Janury, 1808, Carter Beverly conveyed to Peter R. Beverly five hundred acres of land in Culpeper county, by deed of bargain and sale. This deed was left with the clerk of the county to be recorded, hut before it was copied into the record book, the deed was lost or destroyed through the negligence of the clerk.

Subsequently the land was conveyed by Carter Beverly to ^Copland & Williams, in trust, for the purpose of securing the payment of certain sums of money to Ellis & Allan, merchants. The land was sold under the deed of trust, and Ellis & Allan became the purchasers. The bill was filed against Carter Beverly, Ellis & Allen, by Peter R. Beverly, to obtain a decree for the conveyance of the land. Ellis & Allan filed their answer, giving an account of the manner in which their debt arose against Carter Beverly, and of the execution of the trust deed to secure the same.

They said they had no knowledge or suspicion that there was any claim to the land, except a certain dower right, and denied that they ever heard of complainant’s claim until the land was advertised for sale; that they had made diligent inquiry in all the offices where the said deed must have been recorded, and found no incumbrance on the land. They claimed to be innocent purchasers, without notice, and for a valuable consideration.

It was proved by the oath of the deputy clerk, that on January 18, 1808, a deed was acknowledged from Carter Beverly, to Peter R. Beverly ; that before said deed was copied into the record book, he believed it was taken from the office, privately, by some person to him unknown ; that a diligent search had been made for it, but it had never been found.

Section 1 of the act “regulating conveyances,” in Tirginia, required the deed, after acknowledgment, etc., “ to be lodged with the clerk of the court, to be there recorded.” In section 4, the same act acquired “ the deed to be recorded,” etc. Judge Brooke delivered the opinion of the court:

“ The court is of opinion that, on a sound construction of the act entitled ‘an act regulating conveyances,’ and upon the facts in the record in relation to the deed in question, the appellees had that constructive notice of the prior right of the appellant to the land sold under the deed of trust, which that act affords to subsequent purchasers when its provisions are complied with. The certificate of the clerk that the deed was ^acknowledged and ordered to be recorded, and the fact, proved by his deposition, that it was lodged with the clerk to be recorded, was, on the part of the appellant, a full compliance with section 1 of the act.” . . . “Nor would that construction be tolorated, which would make it depend on the acts or omission of the clerk, over whom he has no control, and with whom the law compels him to dejmsit his deed. A different construction would be attended with great mischief. The act having prescribed no time to the clerk to record a deed, by spreading it on the record, its validity would be fluctuating and uncertain, and the object of the act defeated. ‘ If there is any defect in the notice when searched for, the subsequent purchaser, perhaps, has his remedy against the clerk, if it was his duty to make it perfect. If the deed, in this case, would have given more perfect notice, by the inspection of it, the appellant being compelled by the act to lodge it with the clerk, his loss of it would more properly subject him to the action of the subsequent purchaser, in the event that he sustained damage.”

The complainant had a decree in his favor.

In Administrator of Nye v. Estate of Manwell, 14 Vt. 14, it was said said by Judge Redfield, in giving the opinion of the court: “It is true that a deed of land, to be admitted as evidence, even in a suit between the parties, if proved only by the acknowledgment of the grantor, must be first recorded. But when the clerk of the proper office has duly certified, upon the deed, that it-has been properly recorded, we do not think the effect of the evidence can be defeated by showing a mistake in the record; certainly not, where that mistake does not affect the interest of the person against whom the evidence is offered.”

In the case of Sawyer et al. v. Adams, 8 Vt. 172, which was a majority decision like the one I am considering, and, if I may be allowed to express the opinion, equally erroneous, Judge Phelps, in his dissenting opinion, takes occasion to say: “By section 5-of the act relating to conveyances, *Rev. Laws, 167, it is required that deeds of lands ‘ be recorded at length in the clerk’s office of the town in which such lands lie.’ ... I admit that the deed must be recorded at length in a book which is already, or which becomes upon the recording of the deed, legally a part of the record of land titles in the town. But when that is done, I hold the title to be perfected. I can not admit that the town clerk is thereafter to be regarded as the agent of the party whose deed is recorded, for the purpose of giving notice of the deed, nor that the party is responsible for the officer’s doings. Hence, if the town clerk should afterward obliterate, obscure, or even tear out the record, it would not, in my apprehension, defeat the title, . . . Suppose the clerk should destory his alphabet, which would render it necessary to examine the whole record in course y could it be said that the record would be rendered null and the titles defeated ? . . . The objection in this case resolves itself into this : The order of time was not observed. Does this vitiate the record ? I apprehend not. It might deceive a person examining the record, and it might not; and it is for this reason that-I hold tho record sufficient to give effect to the deed, leaving it to the person who may be misled, to seek his remedy.

“I have already remarked, that, in my opinion, a deed may be so recorded as to give full effect to it, and yet the great object of the statute, the giving notice to third persons, may be defeated, as respects particular persons; and that the remedy for the person deceived, is by action against the town clerk, and not by avoiding the title."

In Alabama, where the registry laws are very similar to our own, it has been decided that the deposit of a deed for record is equivalent, so far as the question is connected with registration, to the recording of the deed. Dubose v. Young & McDowell, 10 Ala. 368. See also Greenleaf’s notes to Cruise on Real Property, vol. 2, p. 546, where the learned commentator says: “And a deed is registored in contemplation *of law when it is entitled to registration, and is deposited with tho register, in his office, for that purpose.”

In Piatt v. St. Clair’s heirs and others, Judge Wright, in his Ohio Supremo Court Reports, 529, remarks : “ This deed was recorded, but the recorder, in searching for conveyances, in the multitude of them, by mistake overlooked this. . . . The question before us is not one of notice to an after-purchaser of the same property; but if it were, th a fact of tho deed being on record would be conclusive; the mistake of the recorder, in overlooking it, could not have the effect of divesting the legal title from one guilty of no laches or fault." So in the case at bar: Tho deed of Jennings was recorded. It showed him to be the proprietor, in fee simple, of the identical tract of land, fairly and fully described by its metes and bounds and number of acres. It further showed that the land conveyed was the same land that Granger then resided on, and the brother-in-law of Wood swore that no person by the name of Granger, excepting Lemuel, lived in that neighborhood. The mistake of the recorder in writing the name of the grantor npon his record or in his index, would not divest the legal title from Jennings, who was “guilty of no laches or fault.”

If a slip of the pen, a mere clerical error of the recorder, is to Have the effect to avoid the grant without any fault in the grantee, then it behooves the legislature speedily to provide an additional officer for each recording office—one whose duty it shall be to compare every word with the original deed, and see to it that the letters are all crossed and dotted in strict similarity with those in the writing which is copied; and even then mistakes may intervene, which, under the present decision, will oust the first grantee of his title.

The only safe and sensible rule, is to hold a deed to be recorded or registered, in contemplation of law, when it is “ entitled to registration,” and is deposited with the recorder, in his office for that purpose. If through any fraud, neglect, or mistake of the recording officer, the proper notice is not conveyed to a subsequent purchaser or incumbrancer, who suffers prejudice *thereby, let the person thus injured by lack of notice have his redress upon the man who “makes the mischief.” The Bank of Kentucky v. James Haggin, 1 Marsh. 225.

I. The defendant, Wood, at the date of its conveyance from. Granger, had notice of the prior grant to Jennings—if not actual, at least sound constructive notice ; and therefore, his purchase was made mala fide, and can not avail him, as against the prior unrecorded deed.

In Cunningham v. Buckingham, 1 Ohio, 264, Judges Hitchcock and Burnet held, bn the circuit, that “ the omission to record a deed, did not necessarily render it void. That its validity or invalidity depended on the fact of notice, which might be proved by the same description of evidence that is admitted in other cases. That violent presumption, or the proof of such facts as imply notice, was sufficient......That a man was not at liberty to shut his eyes against the truth and shelter himself under the plea of ignorance. That where a fact comes to his knowledge, that necessarily puts him on his guard, he is bound to make diligent inquiry, and to search for information at the sources from ¡which it is most natural to expect it.”

Again, in Leiby v. Wolf (10 Ohio, 84), Lane, Ch. Justice, in giving the opinion of the whole court, says : “ Whenever the state of the title on the record would lead a searcher of incumbrances, who was using common prudence and care in investigating a title, to a knowledge of a fact, the law assumes that he acquired the knowledge of it. A purchaser from Wolf, therefore, ought to learn all conveyances from Wolf existing on the record at the time of his purchase.”

Apply this doctrine to the case at bar, and what becomes of Wood’s, claim that he is a bona fide purchaser without knowledge of the existence of Jennings’ deed?

In the first place, I hold that the very slight difference in the formation of the two first letters (when written) of the Christian names Lemuel and Samuel, would of itself, put a man of ^ordinary prudence upon his guard, and lead him to examine “the premises” in the deed.

But before l: the searcher of incumbrances ” would come to this, when examining the title of Lemuel Granger to the lands in controversy, he would find, regularly entered of record in the reccorder’s office of Stark county, a mortgage deed from Lemuel Granger, to Simeon Jennings, of the premises in question, bearing date February 6,1839, given to secure the payment of a note for $130, payable in one year.

He would also find, duly recorded, another mortgage deed from Lemuel Granger to Simeon Jennings, of the same premises, bearing date Mai’ch 2, 1841, given to secure the payment of a note for $54.

Ho would also find, duly recorded, another mortgage deed from Lemuel Granger to Simeon Jennings, of the same premises, bearing date April 16, 1842, given to secure the payment of a note for $273.

After making these discoveries, the candid inquirer would seek to ascertain from the record, or from the mortgagee, whether these incumbrances had been removed. If from the record, ho should, in turning over the leaves, find, in a modern index or alphabet, mention made of a deed from Samuel Granger to Simeon Jennings, but nothing further from Lemuel Granger, he would say at once, as the witness said in court, “there is no other Granger living in this community but Lemuel, and as this deed appears to be made to Simeon Jennings, the mortgagee, it is worth my while to read the description of the premises conveyed.”

In doing this, he would meet with actual notice of the grant. And so if he should apply to Jennings, the mortgagee. He would be told what he could not learn from the record, that the mortgages were satisfied, not by the payment of the money, but by a conveyance in fee of the premises from Granger to Jennings.

In truth, it would seem that on which side soever the inquirer * mi ght turn, he would encounter unmistakable signs of the claim of Jennings to the land.

Did Robert Wood make an investigation of the title before he took from Granger a deed of the land ? If he neglected to inquire, it was at his peril, and he is in that ease chargeable, constructively, with notice of what he might have loarned had ho made an examination.

Rogers v. Jones, 8 N. H. 269 ; Jackson ex dem. Gilbert v. Burcott, 10 Johns. 457; Kendall v. Lawrence, 22 Pick. 540; Newman v. Chapman, 2 Rand. 93 ; Worseley v. De Mattos, 1 Barr. 474.

III. I insist, moreover, that the plaintiff below was entitled to recover upon the introduction of either one of the three mortgage deeds from Lemuel Granger to Simeon Jennings, all of which had become absolute at law, were prior in date to defendant’s deed, and all duly recorded.

But it is claimed that these mortgages were satisfied by the delivery of the absolute deed, and consequently that they would not support the action of ejectment.

The great error into which a majority of the court has fallen, as I apprehend, is this, that they venture to treat a mortgage as satisfied, without satisfying the debt which the mortgage was given, to secure. So far as the records of the county show, the-condition of each one of these mortgage deeds is broken, and there is no entry, whatever, of satisfaction.

The parol proof offered on the trial below, tended to show that the absolute deed was designed to satisfy the mortgage debt, but it also appeared that not one dollar in money had been paid by the mortgagor for this purpose.

The great difficulty with this decision is, that it permits those claiming under the mortgagor to set up the absolute deed for one purpose, and to break it down for another. It is a sufficient deed to operate as a satisfaction of the mortgage debt, and to oust Jennings of the fee which vested in him upon the breach of the several conditions in the mortgage deeds ; but having answered that end, it is good for no. other purpose whatever.

*If this absolute deed is inoperative by reason of the mistake committed by the recorder, and the land does not pass to Jennings, how, in the name of common sense, has the mortgage debt been paid ?

But this is all wrong. The legal title to this land was in Jennings, from the time the condition in the first mortgage deed was broken, in February, 1840. The deed of June 8, 1844, was useful for no other purpose than to convey to him the equity of redemption, until then, outstanding in Lemuel Granger.

The acceptance of this last deed by Jennings did not have the effect to extinguish any one of the mortgage deeds. All or any of them could bo kept open, if the interest of the assignee of the equity required it. 7 Greenl. 381; 6 Serg. & Rawle, 559; 5 Pet. 481.

In Hughes v. Edwards, 9 Wheat. 499, the court say: “ 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 more than the mortgagor, assert that equity against the mortgagee, without paying the debt or showing that it has been paid.”

The case of Warner v. Winslow, 1 Sanford’s Ch. 430, is in many of its prominent features, “ on all fours ” with the case at bar, and shows clearly and conclusively, that after Jennings had purchased in the equity of redemption from Granger, the mortgage deeds would be rendered operative to protect his interest in the land, even though the mortgage debt should have been paid. If the mortgage deeds were operative, I suppose no one will doubt the right of the plaintiff below to recover in ejectment.

In Frische v. Kramer’s Lessee, 16 Ohio, 138, Judge Hitchcock laid down the law correctly, “ that after condition broken, the mortgagee may maintain ejectment for the land against the mortgagor, or any one claiming under him.”

*On either one of these three points, I would have advised that the judgment below be reversed.