author: Birchard, J.

text:
    *Lessee of Arthur Wyckoff v. John Stephenson.
    The survey of an entry in the Virginia military district limits the grant to the calls in the survey.
    Where there is a discrepancy in the calls, the line actually run is to be found by having recourse to the, more certain, fixed, and natural objects called for in the boundary.
    This is an action of ejectment, from Brown county.
    On the trial, on the circuit, the plaintiff claimed title to41J acres of land, being entry No. 10,760, dated August 15, 1821, on part of a military warrant, No. 6,439, on the waters of the west fork of Eagle creek, beginning at two sugar trees on the west bank of said creek, upper corner on the creek to Philip Slaughter’s survey, No. 588 ; thence with Slaughter’s upper line south, 69 degrees west, to the line of Thomas Fox’s survey, No. 700 ; thence with Fox’s line north to the southwest corner of John Wilson’s survey, No. 1,820; thence with Wilson’s lower line to the place of beginning. March 23, 1822, this entry was surveyed, pursuant to its calls, and on October 9, 1823, the patent issued accordingly to the plaintiff, who made the entry.
    The defendant claimed title to the same land, under John Wilson, who, on February 21, 1797, entered 500 acres of land on four military warrants, on the west side of Eagle creek; beginning at the upper corner of Slaughter’s survey, thence with his line north, 67 degrees west, to the line of Thomas Fox’s survey; thence with Fox’s line, and from the beginning up the creek, for quantity. This entry was surveyed May 6, 1788, and was claimed by the defendant to cover the same tract of land sought to be recovered by the plaintiff in this action.
    On the trial of the cause, the plaintiff offered testimony to prove that the survey of Wilson, under which the defendant ^claimed, was made by Nathaniel Beasley, a brother of John Beasley, deputy surveyor of Richard Anderson, who returned the survey to the proper office; that the surveyor, in running Slaughter’s upper line, did not in fact run upon the same, but diverged therefrom, leaving an unappropriated tract between it and Slaughter’s lino, being the land now in controversy, and that the line run and corners established by him, were defined by metes and bounds, and artificial monuments, which still exist and are well known.
    He further offered testimony to prove that the lands in Wilson’s survey were cleared up to the line surveyed.by said Beasley, and no farther, for the reason that the persons clearing that part of the survey, believed that line to be the boundary of the same; - that they built their fences on said line; that Wilson disclaimed all right to the land below it; that it was generally reputed-mid believed in the neighborhood to be the line, and was never questioned by the defendant till about five or six years before the commencement of thiesuit; and also, that the land in conLroversjq lying between this line and Slaughter’s line, from the earliest settlement of the country, up to the time that the plaintiff caused the same to be patented and surveyed, was generally called in the neighborhood, vacant land.
    But the court instructed the jury that, as Wilson’s calls, in his entry and survey, were for Slaughter’s line, he had the land up to that line, though in fact Beasley, the surveyor, may have run another line as Wilson’s line ; and, under this instruction, the jury returned a verdict for the defendant.
    The plaintiff moved for a new trial, for misdirection of the court in thus charging the jury, which motion was reserved for decision hero.
    John Jolote, for plaintiff: .
    The question here is, what lands are de facto embraced by Wilson’s patent. That he could have extended his line to Slaughter’s line is not disputed ; but did he in fact do so ? If *be did not, then I hold that the line and corners actually marked, are his boundaries ; not those that he might have made. This case must be carefully distinguished from that where there is no line or corners marked, and the line or corners of a subsequent survey called for. In such case, I do not dispute but that the line called for is the boundary of the survey.
    The first error is, that the instructions of the court took the case virtually from the jury; the whole matter was decided by the court; it left nothing for the jury. There was no dispute between the parties as to Slaughter’s line, nor that Wilson called for that line. This was making the whole controversy a question of law. See Dana, 1.
    In Avery’s Lessees v. Baum’s Heirs, by Judges Lane and Wright, Wright, 576, the jury was instructed that “the lines actually run in the original survey will govern you, if your proof ascertains where those linos are. The first and safest reliance is the actual line as originally run.”

    In Aylshiro’s Lessees v. Hulse, Wright (by Judges Hitchcock and Wright, see page 162), the court said, “ If disputes arise after the conveyance, where the land lies, the inquiry is, where the lines were run, and the objects called for in the deed fixed at the survey.” S. C., 5 Ohio, 534.
    In Hunt’s Lessees v. McHenry and Williams, Wright, 599, decided by Judges Lane and Wright, Judge Wright said, “Where was the line run, is the question ; not where it ought to have run. Whether the line originally run was in accordance with the law or not, is a question between the government and its offlcei’s.”
    In Bayley’s Lessees v. Rupert, Wright, 634 (by Judges Wood and Wright), Judge Wright said, “ The real question is then, where was the line, which is returned as the boundary between these two sections, run on the ground, not where it should have been run. If the line run and returned, is ever so erroneous, it must govern, because the law so provides ; we have no power to correct it.”
    In Preston’s Heirs v. Bowman, 6 Wheat. 580, the Supreme *Court of the United States (by Judge Story) says, “It may be laid down as a universal rule, that course and distance must yield to natural and ascertained objects.”
    In Sumpter v. Bray, 2 Bay, 437, the Supreme Court of South Carolina decided, “Where the original marked trees and corners of natural boundaries can bo found, they ought to govern, on a survey.”
    In 2 Dana, 3, the Court of Appeals of Kentucky say, “ The followingpropositions are inconfrovertibly true, ‘upon principle, reason and authority.’ When the line was actually run, it must bo, as run, the true boundary on page 5, “ policy and law certainly require that the patent calls should define the boundary, unless there be strong and satisfactory evidence showing that an actual survey was made varying from those calls.”

    The case of Frost v. Spalding, 19 Pick. 455, is exactly in point'. There the grantor described the land as bounded by land set off to S. F., for her dower. After the execution of the deed, the parties went upon the ground and pointed out monuments as the termini of this line, which were short of the line, leaving a gore (the land in dispute) between the monuments and the line named in thedoed.
    ' The court decided that the lino from one monument to the other was the boundary.
    The court said, “If the boundaries had been referred to in the deed, there could have been no question that the extent of the grant would be limited by those bounds, although the true dividing line between the Frost’s and Moor’s lots had been further to the northward.”
    “ Where a lot is bounded, in a conveyance, by monuments on a supposed line of an adjoining lot, and the monuments do not in fact correspond with the true dividing line, the monuments must govern, as the most certain indication of the intent of the parties. And if the monuments should extend beyond the dividing lino, upon an estate not belonging to the grantor, ho would be liable on his warranty.”
    *In Bates v. Mercer, 4 J. J. Marsh. 361, the survey of Madison called for Mercer’s line, as one .of his boundaries; but the surveyor, in running off the land, mistook the place where Mercer’s line was, and left a large intermediate tract of land which was the subject in controversy. The court, on page 361, after an argument on a petition for rehearing, said, “ If Mercer had been ton miles off, must Madison bo extended to his line? Certainly not. Why not? He calls for his line. The reason why Madison would not be allowed to expand his survey so as to cover all the interjacent land between the line which he supposed to be Mercer’s and the remote boundary, which is ascertained by the judgment of the court to he Mercer’s true line, is only because there teas an evident mistake in the opinion as to the location of Mer- ' cer’s line.

    “ If Mercer’s line, from his beginning to S. A., bad-been marked and actually run, then still Madison might not havo a right to make it his boundary, if it clearly appeared that he was mistaken in calling for it.”
    “It is a settled rule that a conveyance is to be construed in reference to its distinct and visible locative calls, as marked or appearing upon the land, in preference to quantity, course, distance, map, or anything else.” Van Wyck v. Wright, 18 Wend. 157.
    Artificial monuments or bound'ai’ies, and all visible and ascertained objects, shall control distances in the description of parcels in a deed. Jackson v. Ives, 9 Cow. 661; Doe v. Thompson, 5 Cow. 371; Jackson v. Frost, 5 Cow. 346; Jackson v. Camp, 1 Cow. 605.
    In the Lessees of Nelson v. Hall et al., 1 McLean, 519, Judge McLean instructed the jury that, “If the original marked trees ^or objects called for, shall be proved, the jury will be governed by them, though they may vary materially from the courses .and distances called for.”
    See also Tyler v. Hammond, 11 Pick. 193; Baxter v. Evett’s Lessee; 7 Mon. 333.
    I do not think it necessary to refer to further authorities *upon this question. The general rule that the lines and corner actually marked are the boundaries of the deed or patent, is not, I suppose, disputed by the counsel for the defendant. They insist only that this case is an exception to that rule, and that Nash v. Atherton, 10 Ohio, 164, controls this case. The casos I submit are very different. The question here was (in Judge Hitchcock’s language, 172, 173), “ Whether, when an individual, in his patent or his deed, is bounded by the lands of another, 1ns patent or his deed can be so construed as to include those lands.
    Here the question is, “ Whether, when he actually makes a corner and marks a line short of the line to which he has a right to go, he can, after an acquiescence in that line until another person obtained a patent for the intermediate land, abandon the line he has made, and claim to the.line he might have made, when making his survey. His^acquiescence alone prevents him from doing so. See Jackson, ex dem. of Suffern, v. McConnell, 12 Wend. 421. Wilson, by the evidence, disclaimed all right to the land between the corner at C, and the line of Slaughter’s survey.
    I know of but two exceptions to the general rule in question: - 1. Where a water-course is called for as a boundary, and the trees are marked upon the bank for corners; here, from necessity, the marked trees must be off the natural line. 2. The rule in Nash and Atherton. And, as this case does not come within the exceptions, it is governed by the general rule.
    Nash and Atherton is in our favor. That decides that a man is estopped, by the line ho makes.
    In Nash and Atherton, the court say that they do not intend to disturb the established principles on the question of boundary. We have already shown what those principles are, and they settle, as wo respectfully submit, the present case.
    Hamer & Johnston, for defendant:
    Contended that the calls in the entry, survey, and patent, for Slaughter’s line, could not have been rejected so as to allow the *plaintiff to locate between that line and the actual survey; but that the defendant would hold to Slaughter’s line, notwithstanding the mistake of the surveyor in running off the entry. They relied upon Nash v. Atherton, as settling the law of the case.
    J. H. Thompson replied, and referred the court to the case of Preston’s Heirs v. Bowman et al., 2 Bibb, 493, in which it was decided, “that when the lines and corners of a survey are found, they must control, though they may differ from the patent calls, and that tho locator can not go beyond his marked line.”
   Birchard, J.

In this caso, the call of the patent under which the defendant claims, is in these words : Beginning at two sugar-trees and a buckeye, upper corner to Philip Slaughter’s survey, No. ,588, running with his line north 66 degrees west 290 poles, to a lynn, sugar-tree and ash, in the line of said Slaughter’s survey.” The proof tended to show that the line, as run by the surveyor on, tho ground, and thus described, did not in point of fact correspond with Slaughter’s upper line, but diverged therefrom, leaving an unappropriated vacancy between it and the line of Slaughter of forty-one acres, which the plaintiff’s title covers. Tho fact to be tried by the jury, was a question of boundary purely, to wit, Where was Wilson’s lower line actually run ? Under the charge of the court, the jury were relieved from the inquiry touching this (act, and wore informed that, as the calls in Wilson’s entry and survey were for Slaughter’s line, he had the land up to that lino, although tho surveyed line was at a different place. In this there was undoubted error. The line actually run upon the ground, limits the rights of the patentee. He can not, in a case like this, claim title to lands without his boundary. His survey identifies tho land claimed by him. It defined and controlled his entry which was merged in the survey, and which last is alone embraced by tho patent. It is a well-settled rule, that a line actually marked and oalling for fixed natural objects, must be *controlled by those objects, and that the less certain means of ascertaining its locality, are to yield to the more certain. Thus, courso and distance must yield to artificial/fixed objects, and they again to permanent or natural objects. The permanent natural objects, in this boundary, are the lynn, sugar-tree, and ash, to which Beasly run. The fact that he misdescribed them, as standing in Slaughter’s line, so long as they are to be found, can not affect the right by transferring the line from them over to his line, and it is supposed would never have been thought capable of affecting such an object, but for a misconception of the case of Nash and Atherton, 10 Ohio, 163. That case simply decides that “a conveyance-of land purporting to be bounded on other lands, can not be so conotrued as to embrace the lands on which it is bounded,” and was intended to decide nothing more. There is no doubt of the legal soundness of that proposition. Possibly, had I been concerned in that decision, I might have questioned its entire applicability of the principles to the facts of that case, at least till otherwise convinced by the arguments of my brethren. Be that as. it may, there is a difference between extending a location, so as to make it cover land previously appropriated, and limiting it by actual survey, so as to create a vacancy. New trial granted.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Daniel Brush and Howard Stanbury v. James Kinsley, William A. Adams, and Richard Stillwell.
    The assignee of a promissory note, given in consideration of land — the vendor not having parted with the legal title, and the vendee not having paid all the purchase money — can not sustain a bill in chancery to enforce the payment of the purchase money to the vendor, obtain a decree for the amount of such note against the vendee, and a decree for the sale of his interest in the land.
    A vendor, not having parted with the legal title, and the,purchase money not having been paid, is possessed of both the legal and equitable title to the land.
    A vendor’s lien is personal, and does not pass to the assignee of a promissorv note, given for the purchase money.
    This case comes up on demurrer to a bill in chancery, from the county of Muskingum.
    *Tho facts relied upon for the relief sought in the bill are, in substance, as follows:
    William A. Adams sold two lots, in the town of Zanesville, to one Kinsley, who, in consideration of the purchase money, executed two promissory notes, dated July 31, 1840 — one for $2,000, payable one year after date, the other for $400, payable 18 months after date. Adams, at the same time, executed his title bond, conditioned to execute a deed on the payment of the purchase money. ' Kinsley entered into possession, and has made valuable improvements; and has made payments to the amount of $400. Adams has extended the time of payment from time to time; and $1,000 remains unpaid. The $400 note, by assignment, has come into the hands of complainants and remains unpaid. Kinsley, being in-' debted to Stillwell, executed his notes; and, as security, assigned to him his title bond.
    It is sought to enjoin Kinsley from paying to Adams the balance of the purchase money, or so much thereof as will secure the complainants the amount due on their noto; to decree Kinsley to pay the same, and, in default thereof, to decree a sale of the land.
    R. Stillwell, for complainants :
    When the legal title to land has not been conveyed, the assignee of the vendor stands in the place, and has all the remedies of the vendor, for the collection of the notes given for the purchase money. The case of Jackman v. Hallock, 1 Ohio, 318, was decided without attending to the distinction that exists between cases when the legal title has or has not been conveyed, when, by reference to the cases in which it has been held that the assignee has no lion, it will bo found that, in all, the legal title has been conveyed.
    Thomas M. Drake, for respondent:
    1. The complainants are not entitled to the relief they seek in this court, unless because ample relief is not attainable *at law. And it can not be pretended that a court of law has not jurisdiction — power to bring the maker of the note before it — to render judgment upon it, and issue execution.
    2. There is nothing shown in the bill which entitles the complainants to fasten upon equities in anticipation of a judgment.
    3. The lien of a vendor upon the land sold for the purchase money is a personal lien, and not assignable. It exists, whether notes be given or not, but is no more transferable in the one case than the other. The indorsement of a note only transfers a legal title. Jackman v. Hallock, 1 Ohio, 318; Tiernan v. Beam et al., 2 Ohio, 383. Such is also the generally received doctrine in other states, and in England. Coppin v. Coppin, Sel. Ch. Cases 28, and Pollexfen v. Moore, 2 Atk. 272.
    The situation of the assignee, in a case like the present, is similar to that when a purchaser, in consideration of the conveyance, covenants to pay the vendor a certain sum, and to third persons another part of the purchase money. In such case the latter, not being parties to the contract, would have no lien upon the land, while the vendor would. 2 Story’s Eq. 482, sec. 1233.
    The complainants can not comply with the principle that “ he who seeks equity must do equity.” If they obtain a decree against Kinsley, and collect the money, they can not make him a deed for the land.
   Read, J.

The only possible'ground upon which this bill could be sustained is, that the assignee of a promissory note, given for the purchase money of land, is clothed with a vendor’s lien. It has been decided, in Townshend v. Carpenter, 11 Ohio, 21, that the assignee of a note, not negotiable, having an equity only, may enforce payment in chancery; but, if negotiable, the holder having the legal interest must sue at law. It is not alleged in the bill, that the note is not negotiable, which is necessary to give equity jurisdiction. The legal holder of negotiable paper can not maintain a bill in chancery and obtain *a decree for the payment thereof, upon the ground that ho desires to subject an equity. In sueh case, judgment must first be [iad at law, and then, under the statute, chancery will aid the execution, by subjecting equitable interests to its satisfaction.

But, in this case, are the complainants aided by the vendor’s lien. This lien results'from the fact that equity holds the vendee clothed with legal title to land, a trustee of the vendor for the payment of the purchase money. Before the legal title passes from the vendor on a contract for the sale of land,'there is no sueh lien. The vendor’s remedy, in such ease, is upon the contract, either to enforce a specific performance of the contract, or in an action at law. The vendor can not compel a relinquishment of the legal title until he clothes himself with equity by the payment of the purchase money. In this ease, Kinsley has not paid the purchase money, and hence has neither the legal nor equitable interest in the land. Hence, Adams holds the full title to the land, both in law and equity. How, then, does this case stand? The complainants hold a note for $400, executed by Kinsley to Adams, and by Adams indorsed or assigned to them, and the complainants have the right to look, for aught that appears, to both Kinsley and Adams for payment. But suppose this note not negotiable, and the complainants obtain a decree against Kinsley for the amount as prayed in the bill — how could this court decree a sale of this land ? All that could be done, would bo to decree Kinsley’s equity in tho land to be sold, when in fact he has no equity in it, because he has not paid up the purchase money. Nor can they claim that they have Adams’ lieu as vendor, because Adams has no sueh lien, because as yet he holds both the legal and equitable interest in the land. The whole case then reduces itself down to this — that the legal holder of a promissory note, given in consideration of a contract for the sale of land, not executed, may file a bill to compel the payee and indorser of such note, to specifically perform such contract, and then subject the interest thus acquired, to the payment of such dote. *This is the whole matter, because this is all, if anything, which-under the facts could be done.

But more, if this case was such that the vendor had a lien, the assignment of a note for the payment'of the purchase money would not carry with it the vendor’s lien. This is personal to the vendor, not capable of assignment or transfer, although it may descend or be devised, as settled in Jackman v. Hallock, 2 Ohio, 313; Tiernan v. Beam, 2 Ohio, 383. Demurrer sustained and bill dismissed.


author: Wood, J.

text:
    The Steamboat Waverly v. Joseph Clements
    The purchaser of a steamboat, with notice of a debt created on account of the boat by the original owners, takes the boat, subject to such debt.
    Such boat may be seized and sold by the creditor, in the hands of such purchaser, with notice.
    This is a writ of error from Hamilton county.
    The facts of the case appear, in the opinion of the court.
    Charles Fox, for the plaintiff in error:
    On the part of the plaintiff in error, 1 claim that the suit below could not be sustained against the boat by name, for a debt created by the original owners, after those owners had sold and transferred the boat.

      I claim that debts created by the owners of steamboats, are no liens on the boat, unless the creditor has secured such a lien, by having his claim recorded under the lien law. These laws, when complied with, give to the creditors a lien for two years only. But to give a lien on a boat, by construction, would defeat those lien laws, and give to creditors who had not complied with the requisitions of those laws, an indefinite lien for any period of time; whereas, if they have complied with those requisitions, the lien is limited to two years. The statute authorizing proceedings against boats'by name, does not create a lien in express terms; and it is clear that, according to common law principles, no such lien exists; so that, if the statute gives *none, no lion exists until seizure of the boat, and then it could only affect purchasers, with notice. For a more extended argument on this branch of the case, I ask the particular attention of the court to my brief, in the chancery suit of Kellogg et al. v. Brennan et als.
    It is claimed, however, that the purchaser had knowledge of the claims sued on, being due, and therefore the boat is liable in the hands of the purchasers; but, if there was no lien created on the boat, for this particular debt, it is clear that the purchaser could not be affected by the claim. If a lien existed, and the purchasers know or were chargeable with the existence of such lien, I admit they would bo bound by such notice; but, without such notice, the purchaser would not be affected; 20 Wendell, 20. I suppose it to be well settled, that if a mortgagor is in possession of personal property which he has mortgaged, he may sell to an innocent purchaser and convey a clear title; but a purchaser who know of such mortgage, could not hold against it; and, therefore, whore a lien has been created, either by contract or law, and notice is brought home to the purchaser of the existence of such lien, he will be affected by it. But if no mortgage or statute lien exists, the knowledge that a debt is owing, will not affect the purchaser, because there is no lien.
    But the court will perceive that the clause relied upon in this case, is only intended to extend or keep off payment of 'privileged' debts. Now, mechanics might, if they saw proper, under the lien law, create a lien on the boat, and thereby make their debt a privileged one. And no doubt, so far, any mechanic who had complied with the requisitions of the lien law, would have had a right to have charged those purchasers with notice of such liens, by virtue of the clause in this article of agreement; but this is the whole extent of the operation of the clause in question. It does not pretend to have any reference to anything but privileged liens.
    Again, the court will perceive how the court below arrived at the conclusion it has arrived at. It first assumes the boat to be a person, therefore it is the debtor — a debt is always suable *until the debt is paid, therefore the debtor may be sued at any time — as satisfaction by a debtor of one debt, does not preclude another creditor from suing him; so the suing of a boat, and even selling her to pay the debt of one creditor, does not prevent another creditor from suing and selling the same boat; and in fact, under our statute, there can be no such thing as giving a clear, indisputable title to a steamboat. It is the only piece of property a man can own which is liable to be sold more than once; but this may be sold to pay for an assault and battery, and then it may be sold again to pay a butcher’s bill, and again to pay the blacksmith’s bill, again to pay the ship-carpenter’s bill, again to pay the painter’s bill, and then again for another assault and battery; so that the poor debtor is to be sold every day in the week, and no title is at last convoyed so long as a creditor exists. In this way the rights of purchasers and mortgagees are all overreached.
    I claim, if such is a fair construction of the statute, it is a void act. It is unconstitutional, because it undertakes to take from one man property to pay another’s debts.
    But I claim that an innocent purchaser of personal property defeats all these dormant liens. 8 Cow. 238.
    Th. J. Strait and J. J. Collins, for defendant:
    It is urged that the steamboat law gives no lien nor liability on the boat, but merely a right to sue, and which operates in the end only as an attachment. If such be the true construction, the beneficial effects of that law will soon cease. It only wants to be known to river men generally, to place claimants in a worse situation than before the law; for no boats would have known owners but such as fell into the hands of responsible men. The attachment would avail nothing in such a case; for the shorter and better remedy would be against the owners themselves, which existed before the law in question. Irresponsible men would never run a boat two trips. Every trip she would change from one such owner to another. Weak, vicious *and drunken officers would be employed at reduced wages, who, regardless of consequences, would maltreat passengers, steal, or convert the freights to their own use, and leave shippers, passengers, and the traveling public to seek remedy against a worthless and irresponsible set of owners and officers. The steamboat law of Ohio, under its construction, has done more to elevate the character and responsibility of owners, officers, and river men generally, in the west, than anything that has occurred since the country was first settled. Better men own them; better men are employed to navigate them; fewer accidents happen; fewer lives are lost; less goods are damaged and lost; commerce more safe. And, finally, the public have more confidence than previous to its enactment. In its details, the law is bad, and must have been drawn by a careless hand, and passed without much reflection. Its first section, however, contains matter worthy of being recorded in letters of gold; and evil be the day that the construction thereof shall be pared down to an attachment law. We care not whether it is a lion, as claimed by Judge Hitchcock, in 10 Ohio, 384, 386, or a liability, as claimed by Judge Read, in 11 Ohio, 458, 462. We will not bandy words on that subject. Either will do. It matters not what the name is, so the effect desired is produced. But we must be permitted to say that to us it seems both a lion and liability ; and, as the two words used together in the construction of the first section of the law, would place it beyond question longer, and elevate it to the point most beneficial to the public, and, as we think, nearer the intention of the legislature than any other, suppose we unite them and say, though singly it may be neither, yet in effect it is both.
    It is said to bo no lien, because that would in effect repeal the lien law, and that the legislature never intended it, and should not be construed to be repealed by implication. This argument has not one tenable quality. The lien law is a local statute, first confined to the city of Cincinnati, and was intended for the benefit of the mechanics of that place, and only ^extends to the building and repairing of houses and boats. It was afterward extended throughout the county, and then to several counties, but still it is local. It does not embrace the whole state. If the lien law were to have the influence in the construction of the steamboat law contended for, the latter must become local in its operation also. It must operate as a lien in those counties where the lien law does not extend, and as a mere attachment in those counties embraced in the former. Besides, the steamboat law extends to a greater number of transactions than the lien law, consequently it must operate as a lien or liability on the boat for all such acts or transactions as are not included in the lien law, and they of course need not be recorded ; but such as are embraced in the lien law, must bo recorded as therein directed. A part then, of the provisions in the first section of the steamboat law would create a lien or liability until satisfied — the other only for two years. Such a splitting of a general law, because there happened to be a local law previous, that, with other provisions, embraced a portion of those in the general law, would be an anomaly in the construction of statutes.
    It is said the language of the act does not create a liability for the debt, but a mere right to sue; and if the latter only, this suit can not be sustained, because she changed owners before suit was brought.
    The language of the act is so plain, we can not see how an argument can bo gotten up or a doubt exist. It is, “ shall be liable for debts contracted on account thereof.” This does not say that the boat shall be liable to be sued for debts contracted on account thereof. The words, to be sued, are not in the act. The court can not put them there. If it was intended only to give the claimant the right to sue, why did not they say so ? It was just as easy to say one as the other. Liable for the debt, and liable to be sued, are different expressions, and the meaning of them is easily understood. The fact is, a few steamboat men have been quarrelling with the word “liable” a long time, twisting it every way imaginable, to get clear of responsibility. *“Tho galled jade winces,” but still the language is there, staring them in the face, a terror to evil doers; and the courts thus far have given it its rightful meaning. We never yet heard an honest, responsible steamboat man complain. The law is beneficial to him. He keeps his boat clear of debt, and in good repute; consequently gets the business. Such boats are never sued. The most of the late suits against steamboats, present some shuffling, twisting, aDd cheating concern. , New others find their way into court. Then, forsooth, the legislature did not mean what they have said.
    Suppose the act reully means liable to be sued, instead of liable for the debt, would the rights of the parties in this causo be changed? The boat was once liable to be sued on Clements’ bill. What has changed that liability? Is it changed because the boat has changed owners? Can a liability to a suit once existing be taken away by the act of the debtor, without the consent of the creditor, or without some act of his, or until the debt is satisfied ? Does the law permit a party to take advantage of his own acts, right or wrong, and thereby injure another? But it is said the purchaser is innocent, and therefore ought to be protected. He is presumed to know the law, and consequently purchases the boat with his eyes open, and her liabilities on her. If he does not know the extent of her liabilities, he may risk them if he pleases, or take security from the vendor, and not combine with irresponsible owners to cheat the honest creditors of the boat.
    Bishop & Backus also submitted for the defendant the following argument:
    The determination of this case involves a construction of the “ law providing for the collection of claims against steamboats and other water-craft, and authorizing proceedings against them by name.” Swan’s Stat. 209,
    The only point which we propose to discuss is, whether a judicial sale of a vessel under said law passes a title to the vessel, *free from all claims named in the law which may exist against the craft at the time of the sale, or which may have been contracted before the seizure of the craft in the case in which the sale is made.
    The law provides that the boat shall bo liable for debts contracted on account thereof for supplies or labor, etc. And when you come to section 2 you find it reads thus: “Any person having such demand may proceed against the owner or owners or master of such craft, or against the craft itself.” Does this section mean what it says? Has such creditor the right to elect which of the throe, the owner, master, or craft, he will proceed against? If he has, then there is no further cause for argument on this point.
    It is said that if the purchaser 'does not, at a judicial salo, acquire a clear title, it will be hard on the purchaser, and tend to discourage sales of this kind of property. But we answer that it is no harder on the purchaser, nor does he run a greater hazard in this than in any other case. Patterson v. Mansfield, 3 Ohio, 369.
    Suppose the sheriff seize the craft, by virtue of an execution ' against the nominal owner, and sell her, the purchaser runs the risk of title, and may lose the boat by a paramount title in the third-person. It would be so at auction; it would be so at private sale; and yet, such being the fact, sales are neither discouraged nor unfrequent.
    It is also said that the debts for which the law makes tho vessel liable do not attach as liens at all, nor is the boat liable to be seized after either a judicial or private sale for debts existing at the time or previous to such sale.
    But it is admitted that if the debts contracted under the law are liens on the craft, then they follow her wherever she goes.
    Let us see how the matter stands on this point. There have been three decisions in the Court in Bank of eases arising under this law. Tho first is 10 Ohio, 384. On page 386, the court says: “This law gives a lien upon such crafts for certain claims against them. Its object is on the whole a beneficial one, and, *if possible, should be carried into effect. Had the law merely declared the lien,” etc.
    It is, however, said that the case of Canal Boat Huron v. Simmons, 11 Ohio, 462, contradicts the case in 10 Ohio above cited; because Judge Read said, in the last ease, that “ her responsibility is not in the nature of a lion,” it is claimed the language in the first case is no authority. But take the language used by Judge Read, in connection with the other parts of his opinion, and it explains itself. Ho means that our statute gives not a mere naked lien, like that in New York, which is divested by leaving port, or like tho mechanics’ lien at common law, which is lost by a delivery up of possession of tho property on which the lien has attached; but it is a liability created by law, and follows the boat wherever she goes.
    Lewis v. Schooner Cleveland, 12 Ohio, 341, is further authority that tho debt is a lien on the craft. In the last two paragraphs, on page 343, Judge Wood makes use of the word lion. Again, on page 351, Judge Birchard makes use of the term lion, and indeed in the throe cases it does not enter into the minds of the court but that all debts due by the vessel are a lien upon her, distinguishabl e from that under the New York law or the common law lien of mechanics, etc.
    Wo further maintain that to hold that the vessel is not liable to be seized and sold a second time, the court must not only nullify the statute and defeat its object, by making the seizing and selling not the general rule, but the exception, but they must overrule their former decisions.
    In 11 Ohio, 460, the court say : “The mischief intended to be remedied was the difficulty of collecting debts due from the owners of boats,” etc.; and that the difficulty of hunting up owners “induced the legislature, in all cases, to substitute the boat in their stead, and to treat her as a person,” etc., and “to make the boat responsible for all debts,” etc. On page 461 the court further say: “ Our statute treats the boat as a person, and makes it responsible in its own name for all debts contracted for its use."
    *In Lewis v. Schooner Cleveland, 12 Ohio, 341, the doctrine contained in 11 Ohio, above referred to, is repeated by Judge Wood, and affirmed; and in 12 Ohio, 343, the court make a complete answer to the objections of the evils and difficulties attendant on the doctrine in Huron v. Simmons, 11 Ohio. In 12 Ohio, 344, Judge Wood says: “All demands against the boat may have been discharged, or they may exist, and the purchaser must inquire or take the craft at his peril;” and this last remark completely answers the claim that the purchaser takes a clear title to the boat, if he be a purchaser without notice. Give- the law the construction which counsel opposed ask for, and you will find, in innumerable cases, the craft changing owner, as often as she has contracted debts sufficient to pay the expense.
   Wood, J.

This was an action of assumpsit, tried in the court of common pleas, without the intervention of a jury. The declaration contained the usual common counts. The plea was the general issue, with notice of special matter in bar of the action. In the court of common pleas the parties were reversed, the suit being brought by Clements against the boat for work and materials furnished, and for which the indebtedness accrued on August 8, 1841.

The court of common pleas gave judgment for the defendant in error, and to reverse this judgment this suit is prosecuted.

A bill of exceptions was taken to the opinion of the court, from which it appears the indebtedness was fully proved ; and, at the time it accrued, J. and E. Stout were the owners of the plaintiff in error.

Five months after the indebtedness arose, and before the commencement of the suit, and on her first trip to Now Orleans, the Stouts sold the boat, and the agreement, among other things, contains a stipulation that the Stouts will use their exertions to keep back the debts against tho boat, then due in Cincinnati, until a certain note at nine months, and given in *part consideration, should become payable, or until the claims are presented as privileged claims against tho boat.

In this aspect of the caso, it is contended by the counsel for the boat, that judgment should have been given for her. It is insisted that a suit can not be maintained against a boat by name, for a debt created by tho original owners, after they have sold and transferred the boat to others, because the debts created by the owners are not liens, unless creditors have made them such by having them recorded under the lien law for Hamilton county.

It seems to us entirely unnecessary to decide whether the liability of the boat for debts contracted on her account, is strictly to be regarded as a lien or not, in the present case. When it becomes necessary to decide that question, our opinion will be expressed; but, “ sufficient for the day is the evil thereof.”

The statute makes the boat liable for debts contracted on her account, and croatos her an artificial person, and authorizes a suit against her by name, to enforce that liability. She may be seized, adjudged a debtor, and sold on execution, in discharge of her obligation. Under such circumstances, it is clear to us that a purchaser, with notice of such pre-existing liability, does not take the. boat discharged from the debt.

Such is the present case. The present owners are purchasers with notice, and tho boat may be sued and sold in their hands, in satisfaction of the plaintiff’s claims; and the common pleas, by so deciding, in our opinion, committed no error.

It appears, from the bill of exceptions, that the common pleas gave it as their opinion, that an innocent purchaser might bo overreached, by a creditor of the boat, whose debt was incurred by the original owner. This question does not arise in the cause; for it is clear, from the stipulations in the agreement, the purchasers had full notice of the debt of Clements, and would be, at most, a bad reason for a correct judgment, and, moreover, is but an abstract proposition, which if incorrectly adjudged, does not lay the foundation for a writ of error.

Judgment affirmed.


author: Hitchcock, J.

text:
    *Edward Cowles v. Henry Raguet, Charles McMicken, William K. Brown and others.
    A mortgagor may redeem, notwithstanding the consideration of the note to secure the payment of which the mortgage was executed, was illegal or contrary to the policy of the law.
    This is a bill in chancery, reserved in Hamilton county, and eomes before the court by appeal from the superior court of Cincinnati.
    The original bill was filed on February 17, 1841, in which the complainant states that in the year 1839, he purchased a certain lot in Cincinnati, under a decree of said superior court, upon a bill by him filed, to foreclose a mortgage on the same lot, executed by Peter Roll, one of the defendants, in 1835. That the money bid by him for said lot exceeded, by about fifteen hundred dollars, the amount of the decree. That this surplus is claimed by Roll, the mortgager' by the defendant McMickon, in consequence of an assignment to him of an older mortgage on the same land, given by Roll to the defendant Raguet, and by the other defendants claiming to be judgment creditors of Raguet, and, as such, to have a lien upon the lánd mortgaged.
    The prayer of the bill is, that the defendants may be compelled to interplead ; and in the event that the court shall be of opinion that the mortgage of Raguet is a lien upon the land, then that the complainant may be permitted to redeem.
    The facts of the case as they appear from the bill, answers, exhibits, and testimony, are substantially these. In the summer, of 1826, the defendant made to Raguet two promissory notes for' 8500 each, and, to secure the payment, executed two mortgages on. tho promises in controversy. The *consideration for those notes is said to have been, in part at least, an engagement, on the part of Raguet, not to prosecute the son of Roll, who had been by him accused of larceny.
    On November 27, 1832, Raguet, being in failing circumstances, made a general assignment to the defendant McMicken, for tho use and benefit of his creditors. In this assignment was included ehoses in action, as well as all mortgages or judgments, and tho “ claim against Peter Roll,” then in controversy.
    Afterward Raguet commenced an action of ejectment for the lot in controversy, upon his mortgage, and at the December term of this court, 1836, a judgment was rendered in his favor. McMicken as the assignee of Raguet, subsequently obtained possession of a portion of the mortgaged premises, and enjoyed the same for some twelve or eighteen months, or more.
    The defendants Wood and Abbot, at the February term of the court of common pleas of Hamilton county, 1833, recovered a judgment against Raguet, which was levied upon the interest of. Raguet in the mortgaged premises on April 24, 1840.
    The defendants, Brown, Chase & Co, recovered a like judgmont'against Raguet at the August term of the same court, 1833, and took out execution, which was levied on the same interest, on April 27, 1840.
    In 1835, Roll executed a mortgage on the same premises to the complainant Cowles, which was subsequently foreclosed, and the premises sold as stated in the bill.
    In February 1841, the property was also sold on a vendí, issued upon the judgment of Brown, Chase & Co., and sale confirmed.
    Henry Starr, for complainants, and for defendants, Peter Roll, and Wood and Abbot.
    *If tho judgment creditors of Raguet can sell the lot on execution as his property, the complainant is entitled to a decree quieting his title against them, by paying to them the amount of the mortgages, he having no estate in the lot but what is vested in him by the mortgages and the judgment in ejectment under them ; and if those judgment creditors who have sold a part of the lot, have appealed, he has a right to a decree that they give up their title, and that the deed made them bjT the sheriff bo canceled.
    If the judgment creditors have no such right, but Raguet has a right to take out a writ of possesssion on his judgment in ejectment against Roll, then the complainant is entitled to a decree quieting his title against such a proceeding, by paying to him the amount of the mortgages, because he could only hold possession till the rents or value of the possession should equal the mortgages.
    If McMicken can take out a writ of possession in the name of Raguet for his benefit as assignee, the complainant is entitled to a like decree against him ; 2 Paige Ch. 200; 4 Paige Ch. 384; 2 Story’s Eq. 127; Story’s Eq. PL 241.
    If any of the defendants can avail themselves of the mortgages and the judgment in ejectment under them, in any way or for any purposes whatever, to the prejudice of the complainant, he is entitled to a decree against Roll, declaring his right to apply the surplus to their payment. In that case, they aro a subsisting incumbrance on the lot, created by Roll himself, prior to his mortgage to the complainant. The right to make this application of the surplus is among the equities between mortgagor and mortgagee. The mortgages being a prior lien on the lot, the defendants have a lien on the money arising from the sale of it to the complainant under his decree, and the court will apply it to the discharge of the lion. If there be a surplus arising from the sale of mortgaged promises after the payment of the mortgage debt, it is every day’s practice to apply it to the payment of taxes or any other charge on the land, if properly before the court, rather than order it to be paid to the ^mortgagor. He has no right to it till all prior incumbrances created by him are extinguished. The purchaser has a right to a clear title as against the acts of the mortgagor. If Roll can take the surplus, and the mortgages at the same time be enforced against the lot, the absurd consequence follows that when he mortgaged the lot to the complainant, he did not convey all his estate therein. The point is too clear for discussion.
    The complainant has a right to a decree against McMicken for the rents of the house since he took possession on July 15,1840, at the annual rent of $300, payable semi-annually, and that he give up the possession.
    The. house was under lease at the time upon those terms, and it is proved to be a fair rent. No matter what rents McMicken has actually received, he is liable to pay the rent at the time he so unjustly and unnecessarily (oven for bis own security, if he could use the judgment in ejectment for his benefit), usurped the possession. It might be recovered at law, but the court, having possession of the case for purposes strictly cognizable in equity, will decide the whole matter and do complete justice. 1 Story’s Eq. 187, 188; 10 Johns. 590; 7 Crunch, 69.
    The judgment creditors of Raguet can not sell the lot on execution against him. His estato is that of the mortgagee onlyq not in possession ; and were he in possession, the complainant would have a right to redeem. The judgment in ejectment in favor of Raguet, under the mortgages, does not make the lot liable to be sold under execution against him. Mortgaged premises can not be sold on execution against the mortgagee, though the debt be due and the estate has become absolute at law.
    Previous to the sale of the lot to the complainant, it might have been sold on execution against Roll. It is the settled doctrine of this court, that land mortgaged may be sold on execution against the mortgagor. 2 Ohio, 223, 224; 3 lb. 21; 10 lb. 71; Wright, 251.
    It could not be the subject of execution against mortgagor and mortgagee at the same time.
    *Again, the judgment creditors admit that the mortgages were .given upon an illegal consideration, and that Raguet acquired his estate in the lpt (whatever it be) by committing an act against the policy of the law. From a transaction whose character is thus admitted*, they can derive no advantage or right to sell the lot as the'property of Raguet.
    The court will not make it a condition for quieting tbo title of the .complainant that he pay the mortgages to Raguet or to Mc-Micken, his assignee. It is perfectly manifest he has a right to a perpetual injunction to restrain them in the use of the judgment in ejectment and the mortgages to the disturbance of his title, on some terms. It is equally clear the court can not decree him to pay the mortgages to them, because it would be giving them the “fruits of iniquity.” It would bo paying Raguet to stiñe a criminal prosecution against the son of the said Roll, for a theft with which he charged him; the precise purpose for which they were given. For the same reason that the court would not allow him to recover the money at law which the mortgages were given to secure, it will not allow him to take the same money in another form as a sine qua non of an injunction to restrain their use. 4 Ohio, 400 ; 7 Ib. pt. 1, 76.
    As to McMicken, he has no rights which Raguet had not, even if he has the same. He stands in his shoes. The assignee of a mortgage takes it subject to all equities in the hands of the mortgagee, so far as the parties to it are concerned. 2 Cow. 252; 2 Johns. Ch. 441.
    As the mortgages secured no debt which Roll was bound to pay, they did not pass by the assignment. The assignment of a mortgage without the debt is a nullity. 19 Johns. 325.
    A mortgage is an incident of a debt, and if-the debt fails the mortgage fails. Whatever extinguishes a debt, extinguishes the mortgage. li Mortgages are inseparable' from the debts to which they relate. They follow them as the shadow follows the substance.” Burnet’s opinion, 2 Ohio, 389. A release of the debt is a release of the mortgage. If the debt be *barred by the statute of limitations, there can be no' foreclosure in equity. In fine, whatever defeats the debt defeats the mortgage. 1 Johns. 550; 4 lb. 41; 11 lb. 534; 1 Cow. 159; 1 Bibb, 526; 2 A. K. Mar. 109 ; Adams on Eject. 285, n.
    The object of the assignment was to create a fund in the hands of McMicken to pay the creditors of Raguet. If no debt was secured by the mortgages, they did not come within the object and scope of the assignment. No debt being assigned, the right of entry under the judgment in ejectment, which was not rendered till more than four years after the assignment, did not pass by it to McMicken. He had notice of the consideration of the 'mortgages. The assignment says they were then in litigation. The decision in Roll v. Raguet, 4 Ohio, 400, was mado before.
    I also appear for the defendant Roll, and insist that it is competent for the court to decree in his favor on his cross-bill, that all parties be enjoined from using the judgment in ejectment and the mortgages, and this by reason of the consideration for which they were given. He has an interest in this controversy. If they can not be enforced against the lot, ho has a right to the surplus; if they can be, ho has no right to it. It may be said that as Raguet has recovered in ejectment against Roll by virtue of the mortgages, notwithstanding their consideration, there is no arm of the law to which he can appeal to arrest a writ of possession, and protect himself from their full effect and operation. This position is not a necessary consequence of that recovery. The decision in that case assumes that the mortgages being an executed contract, their consideration could not be inquired into. Not so in this case, their consideration is admitted. But if not admitted, Eoll has a right to an injunction upon the well-established principles of equity. Situated as the parties are in relation to the lot, the judgment in ejectment has to be exchanged for money if it can be enforced against it.
    The complainant has a right to be quieted in his title against *the judgment, if it can be enforced by paying it to whomsoever it belongs. For this purpose he has a right to apply the surplus. The question, then, is between giving the money to Eaguet and paying him his price for suppressing a criminal prosecution, or withholding it altogether. Equity will therefore interfere, not for the direct purpose of relieving Eoll from the effects of an illegal transaction in which he has been concerned, but to prevent Eaguet from receiving the fruits of iniquity admitted to be such. The application of this principle has indeed the indirect effect of benefiting Eoll, by securing to him the surplus, which otherwise he would have to part with. But this is nothing more than the advantage which every one derives from being allowed to avoid his contract by pleading its illegality.
    It is one of the attributes of a court of equity to decree the cancellation of deeds and other securities given for unlawful pur- ' poses.
    It was competent for Eoll at any time after the execution of the mortgages to file his bill in equity, alleging and proving their consideration, to obtain a decree declaring their cancellation and ordering them to be given up. Such a decree would have been granted, especially if Eaguet had answered admitting the consideration. The relief would have been afforded upon the principle of quia timet, if upon no other. The right to enjoin the judgment in ejectment rests upon the same principle. He can not be met by the maxim in pari delicto, etc. Between particeps criminis, the law not unfrequently discriminates and assists the least guilty. The maxim that in pari delicto melior est conditio defendentis, does not always prevail. 1 Brown’s Ch. 543, n.
    “ It operates only where the refusal of the courts to aid either party frustrates the object of the transaction.” If it be necessary to discountenance such a transaction, equity will relieve against it, though both parties be in pari delioto, Doug. 670, n.; Cowper, 270, 790; 4 Rand. 378.
    Eden on Injunctions, 16, speaking of securities given *to compound felonies and for other unlawful purposes, says : “ A question frequently arises in these cases, and one which has not yet been completely and satisfactorily discussed, viz: to what extent a court of equity will give assistance to one who is particeps criminis to an illegal transaction. .
    Judge Story, in discussing the plonáry jurisdiction which courts oí equity are accustomed to administer in relation to constructive frauds, and their power to decree the cancellation of instruments, in vol. 1, p. 291, says, “Agreements founded upon the suppression of-criminal prosecutions, fall under the same consideration. They have a manifest tendency to subvert public justice.”
    It may be laid down as a general rule, that whenever a deed or other instrument would be void at law by reason' of the illegal purpose for which it was given, especially if its object be to obr struct the course of public justice, equity will decree it to be can-celled and given up, unless the party seeking relief be solely guilty, or has equally participated in the illegal transaction, so that, by sustaining him, it defeats, rather than promotes, the policy of the law. 1 Story’s Eq. 261, 300; 2 Story’s Eq. 8, 9, 10; Fonbl. on Eq., bk. 1, ch. 4, sec. 4, notes; Newl, on Con., ch. 8, p. 158; 5 Ves. 286 ; 7 Ves. 3; 13 Ves. 581; 3 P. Wms. 391; 1 Brown Ch. 543; 3 Burr. 1508; 2 Yerg. 524 ; 10 Yerg. 59,
    Chan. Kent, in Hamilton v. Cummins, 1 Johns. Ch.522, recognizes as correct the remark of counsel in French V. Connelly, 2 Anst. 454, that it is every day’s practice to order instruments to be delivered up, of which a bad use might be attempted at law, although they would not even there entitle the holders to recover. Ho adds, it is indeed not very apparent why a doubt could have been started in some of these cases as to the general jurisdiction of the courts, when we consider the uniform tenor and language of the more ancient decisions, and which do not -appear to have turned upon the distinction whether the instruments were or were not void at law.
    All contracts, agreements, or promises, whose consideration is*illcgal, against public policy or good morals, are void, and will not be eniorced by courts of justice, whatever form they asumo. 6 Ohio, 442; 2 Kent, 466; Chit, on Con. 657, 725,

      Cases collected by Mr. Walker, in his argument (appendix), in the case of Groves v. Slaughter, 15 Peters, 440, appendix, 20.
    The correctness of the decision in the ejectment suit of Raguet v. Roll, 7 Ohio, 76, may well be questioned. With much deference to the court, I think it is not law; and were it necessary to tho maintenance of the rights of Roll in this case, it might be shown, I think, by process of reasoning, little less conclusive than a mathematical demonstration. The court assumes that a mortgage is an executed contract; that is, the delivery of the mortgage vests the estate in the mortgagee. Does it therefore follow that tho guilty party is entitled to the aid of tho law to get possession of the mortgaged premises? Suppose the defeasance of a mortgage be to perform some illegal act, it is as much an executed contract as a mortgage whose condition is to pay money. According to Lord Coke, if a man made a feoffment upon condition that the feoffee shall kill John Stiles, tho estate is absolute, and the condition void. Coke Lit. 206, b.

    No matter whether tho illegal act, which is the condition of the conveyance, is to be performed by mortgagor or mortgagee. Neither is it material that it should appear on the face of the mortgage. It may always bo shown, and, when shown, the effect is the same. No form of contracting shall escape the search of the law, when the law proh ibits the making of tho cobtract.' 2 Wilson, 349.
    If the decision bo law, the most nefarious transactions maybe concealed under cover of a mortgage, and the policy of the law defeated.
    In the decision referred to, the court observe, although a strong disposition existed once to treat a mortgage as a mere chose in action ; and, although individual judges were heard to *de~ claro that the money was tho principal, and the land only the incident, and whatever would.carry the money, would convey the land, yet such is not now supposed to be the law. A mortgage is in reality an actual payment of the debt, as well as an actual transfer of the land.
    This is not tho.language of tho law, as it seems to me, or of this court, in other cases, as to the nature of a mortgage. 8 Ohio, 23; 2 Ohio, 225, 389, 390; Wright, 251; 4 Johns. 43.
    A mortgage is a chattel interest, a mere security for a debt. This seems to be the view taken of it in the books. 11 Johns. 533; 15 Johns. 319; 6 Johns. 290; 16 Johns. 254; 2 Cow. 195 ; 5 Cow. 202; 1 Cow. 122 ; 18 Johns, 110.

      If the judgment creditors of Raguet have a right to sell the lot on execution, the defendants, Richard D. Wood and William L. Abbott, for whom I also appear, have the preference by reason of the bill in chancéry, filed by them, to subject the judgment in ejectment tothesatisfaction of their judgment against Raguet, and the levy of their execution on the lot, April 24, 1840. They can not be defeated in this preference because the other judgment creditors levied three days before. Those creditors had knowledge of the bill filed by them. Equity will not permit them to gain an advantage under the circumstances disclosed. It is not a case for the application of section 4 of the act relating to judgments and executions. But if Wood and Abbott had not the preference, there is equality of right among the judgment creditors.
    It is deemed, however, unnecessary to examine the respective claims of the judgment creditors, inasmuch as Wood and Abbott and McMicken only have appealed from the decree of the court below. Their separate appeals, and each for themselves only, do not appeal the whole case.
    The defendants have no interest in common. Their claims are altogether antagonistic. Wright, 359, 599; Ohio, 516.
    ^Thomas J. Strait, tor the defendant McMicken :
    The object of the complainant is to compel the defendants, Mc-Micken, Peter Roll, and the creditors of Henry Raguet, to interplead in relation to $1,490, which he holds as a surplus on the sale of certain promises in Cincinnati, on a mortgage given by Peter Roll to him, subsequent to two mortgages given by said Roll to Henry Raguet, well known to this court, and on which said Raguet recovered in ejectment in this court, at the April term, 1837, the principle upon which the recovery was had, having been settled in bank previous. See 7 Ohio, 70, pt. 2.
    This argument is made for McMicken, and before I proceed, I must remark that he does not claim the surplus ; nor do I see at present why Peter Roll is not entitled to said surplus.
    McMicken claims all the title and interest that was in Henry Raguet, by virtue of the mortgages, and the judgment in ejéctment thereon, and that he is in possession of part, and has good right to the possession of the remainder of the same.
    He claims that, if any doubts could now arise, they are dispelled, and the matter is renderod certain by the adjudication and decree of the Supreme Court, in the case of the present complainant against said Peter Roll himself, and Wood and Abbott, referred to in his answer, and which resulted in the sale of said premises, by decree of said court, subject to the right of McMicken, under said Raguet, mortgages and judgment in ejectment, and which sale produced the surplus now sought to be applied to extinguish Mc-Micken’s claim. In that case Roll was made defendant, and he set up his right to have said mortgages and judgment abrogated, because this court had previously decided that Raguet (and of course McMickin who claimed under him) could not enforce the debt secured by said mortgages, inasmuch as part of the consideration was illegal.
    McMicken set up his right by virtue of the assignment from Raguet, and Wood and Abbott set up their right to the same as judgment creditors of Raguet.
    *Tho court decreed that McMicken was the owner of said mortgages, and judgment thereon, and that the sale must be made subject to that ownership.
    See McMicken’s answer, and the paper accompanying the same, which is a copy of the decree, so far as it is connected with the Raguet mortgages, and which is agreed by all the parties to be taken in lieu of the record. But whether or not McMicken’s answer sets up said decree and states what it is, his answer must be taken as true, as it is not replied to.
    Besides, the complainant’s title and right to relibf is under and by virtue of this decree. The surplus money is produced by a sale under this decree, which necessarily is a part of his case, and must be examined by the court.
    This decree is unappealed from, and certainly does settle the rights of all parties thereto. The creditors of Raguet, represented by Mr. Fox, are the only persons parties to the suit, that are not bound by said decree. The sale was directed to be made subject to McMickon’s right of entry under said mortgages and judgment. The complainant did purchase the same subject to said right. The court did refuse to abrogate said "right, and clear away the incumbrance, either in favor of Roll or Cowles.
    How can Cowles then ask to have his title quieted as against these incumbrances, when he holds subject to them, and they are an exception in his title paramount by said decree to his interest?
    How can he ask to appropriate an overplus of money to the ex-tinguishment of an incumbrance recognized by the decree under which he claims title as paramount, and subject to which he purchased ?
    The complainant must have purchased the premises at a sum much less than their whole value; because by the order of sale the purchaser, had to look to the satisfaction and extinguishment of said incumbrances. With what justice can he withhold the surplus from Roll, who was the judgment debtor, or have these incumbrances extinguished, and his title quieted against them?
    *Or what right has Roll to have these incumbrances cleared from the premises? He has no longer any interest therein; he does not claim anything therefrom. It is all the same to him whether Cowles holds the title subject to, or clear of, said incumbrances. The surplus money is no way connected with them, in point of justice or law, though the complainant naturally seeking his interest, seeks to connect them.
    I hold the surplus ought to belong to Roll; that the complainant, and whoever is entitled to the interest in the Raguet mortgages must settle that among themselves, or seek the aid of the court in that particular.
    Thus I am brought to another point.
    What are the interests of other persons under these mortgages and judgment?
    Wood and Abbott’s claim, as creditors, is settled by said decree against them. The only reservation, as to them, was a suit in chancery, then pending in the court of common pleas, in their favor against said Roll, McMicken, and Raguet. That suit, in the Supreme Court, was settled against them long since, which ends their claim.
    The other creditors of Raguet claim by a levy and sale of said premises by execution, on judgments of subsequent date to McMieken’s assignment, and with a full knowledge of the same. To sustain their title, the court see at once that, the interest in said Raguet must have been such as would pass by sale on execution ; or, in other words, a fee which I think the court would hardly be willing to admit.
    Whether a fee or not, McMicken’s deed of assignment covers the whole interest previous to their judgments. For his deed is well executed, to pass the fee, and is recorded. It is acknowledged beforo two witnesses and a justice of the peace, and the description of the premises is sufficient to pass the fee. It is this : “Miso, all mortgages, as well as my claim against Peter Boll, now in suit.” The action of ejectment on said mortgages was then pending in the Supremo Court, and I believe it is well settled, that any reference in a deed to other deeds, papers, or suits, wherein the description ‘is perfect, is sufficient.
    *If this deed does not pass the fee, and it should be held that Raguet’s interest was a fee; yet McMicken, by said deed, would have the superior equity, and the other creditors of Raguet, having nothing of the same, could hold nothing but the strict naked title, which, in equity, they would hold for the benefit of McMicken and this court, the proper tribunal, to’ decree accordingly.
    If is said, however, that no parties ar'e before the court on the appeal, but the complainant, Roll,' Wood and Abbott, and Mc-Micken, If so, of coui'se no claim on their behalf can bo set up.
    This is the third suit in chancery brought by Mr. Starr, in favor of some one setting up principally the same matter, in which Roll, Raguet, and McMicken have been parties, and, as usual, detailing the history of the three suits of Raguet v. Roll, founded upon said mortgages, and at all times claiming that the debt was extinguished, and insisting that the mortgages wore of course gone with the debt. All but the present suit have been settled against this proposition. How this will be settled remains to be known.
    The idea has generally prevailed that the debt, or consideration upon which said mortgages were given, has been extinguished by the decisions: first, in 4Ohio, 418 ; secondly, in 7 Ohio, 76, pt. 1. Without reflection, and an examination of the principles upon which said decisions were made, a person would be led to that conclusion (though a very erroneous one).
    To my mind a clearer proposition never presented itself, than that the considerations of said mortgages are not extinguished by said decisions. The languago of the court, in both cases, is too clear to be misunderstood. He that can run may read and understand.
    The question in said cases was, whether a part of the consideration was not illegal; and, if so, it tainted the whole consideration, as it could not be divided ; and that it was against policy to aid a party in enforcing a contract, where its consideration, was in wholo or part illegal.

      *Tho court did not undertake to decide that there was no consideration; but that, inasmuch as the mortgages were not only given to secure the payment of the stolon property, but as an inducement to Roll to secure the payment of the property so stolen by his son, Raguet, the mortgagee, promised to suppress and stifle the prosecution for the theft against his son. °As the mortgages would not have been executed by Roll without this promise, it formed part of the consideration, and was against public policy to enforce; but the real consideration or debt, is the same as if those decisions had not been made.
    Those decisions extinguish the remedy to recover the debt, or real consideration, and not the consideration itself. The language of the court, in 7 Ohio, is this: “The parties are to be left precisely where they were found. The law lends no aid to either plaintiff, or defendant. The plaintiff may possess his mortgage; he may receive the money in its condition secured, but he must do so without the aid of this court.”
    In the case in 4 Ohio, the court uses this language: “As between the parties the defense sot up may not be very honest; that the objection that a contract is immoral or illegal, as between plaintiff or defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed. It is founded on general principles of policy. If the agreement be executed, the court will not rescind, it; if executory, the court will not aid in its execution. Afterward, in the ejectment, the court decides that the mortgage passes the legal title, and the mortgagee is entitled to possession under it. So far as the title is concerned, it is an executed contract, and they can not rescind it.
    The mortgagee being then in possession, or in right to the possession, by virtue of the mortgage and judgment, nothing remains in fieri, the aid of the court is not asked in executing the contract; an d the necessary result is, by the decision referred to, that neither Roll, nor any one claiming under him, can have the contract rescinded, or disturb the mortgagee in his possession, without first paying the money mentioned in the condition. *Ho thus gets his money, without the aid of the court, precisely as the court say ho may, in 7 Ohio, pt. 2, 78.
    Why is this suit brought, unless some relief is sought, or noces-sary, against McMieken, to prevent him from enjoying the promises, or unless the complainant asks to redeem by paying tho money due by the condition?
    The complainant claims under Roll, and can ask no more than he. It certainly will not be pretended that Roll could have the contract rescinded, because tho consideration is illegal. When Roll asks such aid of 1;he court, he is in precisely the same situation as Raguet, in the cases referred to, where he asked the court to execute the contract and compel Roll to pay the money, and they refuse,
    It is admitted that McMicken stands in the place of Raguet, as between tho complainant Roll and himself, and so does the complainant stand in tho place of Roll. Insomuch that the matter between Cowles and McMicken must be settled as between Raguet and Roll.
    The result is, that McMicken, as assignee of Raguet, is entitled to the possession — unless Cowles asks to redeem, on payment to him of the money in the condition; and Roll is entitled to tho surplus which McMicken does not claim.
    It is said Cowles has the right to apply this surplus to any prior incumbrance in the way of mortgages, taxes, judgments, etc.; that it is the every-day practice. Exactly so. In an ordinary case he would have that right; but in this case, the decree in the superior court excludes him from that. He did not purchase and pay the full price of the land with a view of appropriating tho money to extinguishing this incumbrance ; but he purchased subject to it. But if he had purchased the whole interest subject to nothing, then the first money arising from the sale should be applied to the incumbrance, because it is elder than his.
    The complainant seems to supipose the Raguet incumbrance junior, if we may judge from the view he takes of the surplus. For it is junior liens that claim surplus money on sales. The elder lien has nothing to do with the surpilus. It is entitled to *the money necessary for its satisfaction, if so much is made. If not, then so far as it will extend.
    Suppose, in conclusion, I take another view of this case. Tho mortgages pass the legal title to Raguet (indisputable). The condition is said tobe void because illegal. The mortgage is to be void on the performance of the condition, but the condition can not be performed because illegal. The mortgage deed, then, is stripped of the condition, and left a simpile deed, convoying tho fee. This result is a necessary consequence of the positions taken by comrplainant and by Roll, and tend greatly to McMicken’s intercst to have the matter thus settled; but I apprehend the court would hardly go this far. They would rather say the condition is not void; though they would not aid either party in enforcing it.
    J. T. Crapsey, for the defendant, Roll, and Charles Fox, for the defendants, Brown, Chase & Co., also submitted arguments.
   Hitchcock, J.

The facts and circumstances connected with this case are not new to the court, at least those which may be considered as the leading ones. They have been repeatedly presented to us, have been as often passed upon, but the controversy does not as yet seem to have been closed.

Before proceeding to the consideration of the particular questions arising in this case, it may be well to ascertain what has been the previous action of the court. Previous to the December term, 1831, Raguet commenced a suit against Roll, upon the notes secured by the mortgage, referred to in the statement of the case. This suit was commenced in the court of common pleas of Hamilton county. The defendant pleaded in bar, that before and at the time of the commencement, Charles Roll, the son of the defendant. was suspected and accused by Raguet of having stolen his goods and chattels in Cincinnati ; that Raguet was about to institute a criminal prosecution against Charles, for the theft, and that the consideration for which the note was given, was a promise or engagement on the part of Raguet that he would refrain and desist from instituting %ueh criminal prosecution. To this plea there was a general demurrer. The court of common pleas sustained the demurrer and rendered a judgment against Roll for the amount of the notes.

To rovei’se this judgment, a writ of error was sued out, and the case came on for bearing at the aforesaid December term of this court, 1831. By the decision of the court, the judgment of the court of common pleas was reversed, upon, the principle that ^vhenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them. If the agreement be executed, the court will not rescind it; if executory, the court will not aid in it's execution. This case is reported at length in 5 Ohio, 400.

Raguet then commenced a suit, by scire facias, upon the mortgage, under the law then in force, to enforce payment by the sale of the mortgaged premises. A plea substantially the same as that interposed in the action upon the notes, was filed; and, upon trial, they jury found the facts as stated in the plea. A motion was made for a new trial, which the court overruled, sustaining the decision in the former case. 7 Ohio, 76, pt. 1.

Raguet then commenced an action of ejectment upon the mortgage, and this came before the court at the December term, 1836. Roll attempted to pet up the same defense as in the former cases, but it was not allowed by the court; the court holding that a mortgage was not an executory, but an executed contract; and, that as the court would not aid in carrying into effect a contract of the former character, so neither would it aid in avoiding or rescinding a contract of the latter character. 7 Ohio, 70, pt. 2.

What then is the situation, at this time, of the original parties to this contract? The fee of the-land is vested in Raguet or those claiming under him; and, by execution upon the judgment in ejectment, he may at any moment be put into the possession.

This judgment can not be enjoined, because, by ordering *an injunction, the court would be doing, indirectly, what it has refused to do directly. It would in effect amount to the rescission by a judicial tribunal of an executed contract, the consideration of which was against public policy, and which would bo contrary to the opinion of the court, as expressed in the case already cited from 4 Ohio.

Now what is the case before the court? The interest of Roll in the lot of ground was transferred to the complainant by judicial sale in 1839. He has in his hands about $1,500, which belongs to Roll, unless the same is necessary to satisfy prior incumbrances. The complainant prays the court, in the event the mortgage of Raguet is hold to be an incumbrance upon the land, to allow him to redeem; and he prays further that the funds now in his hands may bo applied to that purpose.

The court have already decided, not only that the mortgage is an incumbrance, but have sustained an action of ejectment in favor of the mortgagee, for the recovery of the possession of the mortgaged premises; and as already remarked, the mortgagee may, at any moment, through the instrumentality of the proper writ of execution, acquire the possession. The legal title is vested in the mortgage, but the deed under which he claims, and by virtue of which the title is vested in him, is subject to a condition that the same shall be void, upon the payment of a certain sum of money by the mortgagor. Now there is nothing in this condition requiring of the mortgagor to perform an impossible, immoral, or illegal act. If such were the fact, the condition would be void and the deed absolute. But it is not so. It is a simple condition for the payment of money.

But it may be said that the original consideration for the promise to pay this money was an illegal consideration. Be it so. Still the person to whom the promise was made, can not be permitted to set this up to destroy the effect of a condition inserted in the deed, executed to secure the performance of that promise. When the mortgagee was prosecuting an ejectment upon his deed, we would not and did not permit the mortgagor *to avoid that deed by proving that the consideration was illegal. And now, when the mortgagor comes to redeem, shall we permit the mort-. gagee to defeat that condition, by proving that the consideration for the promise set forth therein was illegal ? This' would not seem to comport with even-handed justice. It would havo been honest in Roll to have performed this condition by the payment of the monejL It would be honest in the complainant to pay it; and wo think he has a right to do it, and thereby redeem the land from the effect of the mortgage.

But, in this case, the mortgagee does not object to the redemption. The objection comes, so far as there is any, from the mortgagor himself. He claims to be discharged from the performance of the condition, and still to retain the land. He seeks to induce this court to do indirectly what it would not do directly. In this aspect of the case, it is nothing more nor less than an attempt to obtain an injunction against the judgment in ejectment. Tuis can not be done. The mortgagor has conveyed this land by a deed duly executed, subject nevertheless to a condition. If he would retain the land, he must perform that condition.

But it is insisted by the counsel of Roll, that admitting the right of the complainant to redeem, still that the surplus money in his hands can not be applied to this object, because, as they say, he purchased the land subject to the mortgage of Raguet. The fact appears to be this: In the decree in the case of Cowfes against Roll and others, under which the complainant purchased, the court, although they ordered a sale, did not undertake to decide the validity oí Raguet’s mortgage. Of course that sale must be subject to this incumbrance. But still the land could not be, and was not sold for any less sum. The law required that it should. be sold for at least two-thirds of the appraised value. It was so sold. The laud itself for its full value; not the land reduced in price in consequence of Eaguet’s mortgage. Under these circumstances, it seems equitable to the court that this surplus should be applied, first, to remove *the incumbrance of the mortgage now in controversy. If anything remains, it must be paid to Boll.

The next question is as to which of the defendants is entitled to the money to be paid for the redemption of this mortgage. McMickon claims as the assignee of Eaguet, by deed executed in 1832; Wood and Abbott, and Brown, Chase & Co., as judgment creditors of Eaguet, under judgments rendered in 1833, and levied on his interest in the mortgaged premises in 1840.

From a careful examination of the deed of assignment, we are clearly of opinion that the interest of Eaguet, by that deed, was vested, in McMicken; and such being the opinion of the court, it is unnecessary to inquire as to the claims of the other defendants.