author: Spear, J.

text:
    In the Matter of the Estate of Morrison, Deceased.

      Appointment of administrator by probate court — Gives court jurisdiction of person of administrator — Until Ms accounts are settled — Such jurisdiction not ousted by appointment of successor, when — Probate law.

    The appointment of an administrator hy the probate court and his acceptance of the trust and qualification as such, gives that court jurisdiction not only of the estate hut also of the person of the administrator until his accounts as such administrator are settled. And that jurisdiction is not ousted by the fact that, on motion of parties interested and after due notice to the administrator, the court makes an order requiring him to make settlement and at the same time and ■by the same entry orders his removal and appoints a successor.
    (Decided April 28, 1903.)
    Error to the Circuit Court of Knox county.
    In the year 1852 the plaintiff in error, Robert Miller, was appointed by the probate court of Knox county, administrator de bonis non, with the will annexed of the estate of James Morrison, deceased, late of that county. In the year 1862, Miller filed a partial account as administrator which was duly approved. In the year 1890, a suit was brought in the court of common pleas of Knox against Miller, as administrator, by defendants in error, Letitia S. Ogelvie et al.j beneficiaries under the Avill of Morrison, to compel Miller to account for assets of the estate not before accounted for, which cause being tried in the common pleas was appealed to the circuit court, where on trial at March term, 1895, a finding and judgment was had in favor of plaintiffs, and it was further ordered that “this cause be sent to the probate court of Knox county, Ohio, with orders to carry the decree of this court into effect, and to take the above account as therein ordered.” Soon thereafter a motion was made by the legatees to require Miller to give a new bond, the sureties on his original bond being dead. Due notice being given Miller of the motion and of the hearing thereof, and he failing to show any reason to the contrary, such order was entered. Miller failing to comply, was removed, and one Sapp appointed as his successor. It was also, at the same time and by the same entry, further ordered “that the said Robert Miller do forthwith deliver to said Dwight E. Sapp, as such administrator, upon his being qualified as such administrator, all moneys and property in his hands belonging to said estate, and pay over to him the balance due and owing said estate. It is further ordered that said Robert Miller make final settlement of his administration of tbis estate.”
    On motion of Sapp, administrator, a citation was then issued to Miller to file an account of the administration of the estate. He answered denying the jurisdiction of the court, arguing that he had been removed and .was not then acting as administrator. Demurrer to this answer Avas sustained and Miller ordered to account. Attachment was then issued as for a contempt. To this Miller made the same answer. The probate court held against him and a Avrit of attachment was ordered. Thereupon, on December 11, 1895, Miller filed an account. Exceptions were taken to the account by the defendants in error, and others, and being in part adjudged against them, the cause was by them appealed to the court of common pleas. In that court Miller interposed a motion to dismiss the appeal, bn the ground that neither the probate court nor that court had jurisdiction either of the account or of the accountant. This motion was sustained and the cause ordered dismissed. On error to the circuit court, the judgment of the common pleas was reversed, for error in sustaining the motion to dismiss the appeal, and Miller brings error.

      Messrs. McIntire & McIntire and Messrs. Cooper & Moore, for plaintiff in error,
    cited and commented upon the following authorities:
    Section 8, art. 4, Const.; sec. 524, Rev. Stat.; Davis v. Davis, 11 Ohio St., 386; secs. 6015, 6017, 6018, 6019, 6049, 6057, 6178, 6204, 6205, 6207 and 6208, Rev. Stat.; Weaver v. Reese, 6 Ohio, 418; Tracy v. Card, 2 Ohio St., 431; Curtis v. Lynch, 19 Ohio St., 392; Douglas v. Day, 28 Ohio St., 175; O’Conner v. State, 18 Ohio, 225; Mighton v. Dawson, 38 Ohio St., 650; Gorman v. Taylor, 43 Ohio St., 86; Newton v. Hammond, 38 Ohio St., 430; Slagle v. Entrekin, 44 Ohio St., 637; Bolles v. Stockman, 42 Ohio St., 445; Garver v. Tisinger, 46 Ohio St., 56; 1 Woerner Am. Law of Adm., 589, Casoni v. Jerome, 58 N. Y., 315; Nevitt v. Woodburn, 160 Ill., 203; In re Hood, 104 N. Y., 103; In re Radovich, 74 Cal., 536.

      Mr. J. B. Waight and Mr. J. B. Graham, for defendants in error, filed no brief.
   Spear, J.

It was the opinion of the circuit court that the probate court had jurisdiction over Miller, and the account he was required to file, and the exceptions thereto, although he had been removed for non-compliance with the order to give an additional bond. In this we think that court was right.

The precise question has not before been presented to this court; at least, not in any reported case. Attention is called by counsel for plaintiff in error to the cases of Weaver v. Reese, 6 Ohio, 418; Tracy v. Card, 2 Ohio St., 431; Davis v. Davis, 11 Ohio St., 386; Curtis v. Lynch, 19 Ohio St., 392; Douglas v. Day, 28 Ohio St., 175; Mighton v. Dawson, 38 Ohio St., 650; Slagle v. Entrekin, 44 Ohio St., 637, and Carver v. Tisinger, 46 Ohio St., 56, and it is sought to draw from them the rule that the only mode provided by law in this state for enforcing a determination of the amount due the estate from an administrator who has been removed, is by suit on the administration bond. It is true that chance observations here and there in some of these cases tend to give color to this proposition, but the question was not before the court in any of these cases, nor is it believed that any of the judges who prepared the opinions intended to express a personal judgment upon it.

It is true, also, that, as held in Davis v. Davis, supra, the probate court is one of special and limited jurisdiction, and that the grants of power are specific and that other powers are limited to such as are necessary and proper to carry into effect the powers expressly granted. But the constitution provides that that court “shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the account of executors, administrators and guardians * * * and such other jurisdiction, in any county or counties, as may be provided by law.” And the statute, in furtherance of the general power, specifically provides jurisdiction “to direct and control the conduct, and to settle the accounts of executors and administrators, and to order the distribution of estates.” These provisions, though specific, are comprehensive and ample, and entirely cover the case unless the fact that the administrator had been removed ousts that court of its jurisdiction of his person, and of his accounts. Why should it? That court has original jurisdiction of the res, the estate; it is incumbent upon that court to require the administrator to perform his duty. He had not settled the estate, and was liable to be ordered, at any time, to file his final account. The probate court is the court in which it should be filed. No other court is so well suited to direct the duty in that respect and enforce its performance. True, also, is it that so far as subsequent conduct of the administration of the estate is concerned his power was at an end; but his full duty had not been performed, and it appears the extreme of technicality to assume that the court from which he derived all his poAvers is shorn of jurisdiction to enforce obedience to the plain duty incident to those powers. Among those plain duties was that of duly accounting in that court for his trust, and this duty was a continuing one. His bond specifically requires that he render a true account when required by the law. The law (section 6175) also specifically provides that he shall, within eighteen months after appointment render an account, and in like manner render further accounts every twelve months thereafter, until the estate shall be wholly settled, and this provision is irrespective of any order of the court to that effect. Slagle v. Entrekin, supra, is authority for the proposition that an administrator can not oust the probate court of jurisdiction by resigning pending the settlement of his accounts. In that case the administrator had filed an incorrect account. Does not the principle apply as well to a case where lie has neglected to file any account? The crucial fact is present in both cases, viz.: That tbe administration of tbe estate remains unsettled. His accounts relating to past transactions have not ceased to be tbe accounts of bis administration simply because bis power to carry on future transactions is gone.

We are not materially aided by text writers, or by adjudications in other states, inasmuch as tbe jurisdiction of tbe probate court in any state depends upon tbe constitution and statutes of that state. Nor is there special and definite provision by oúr statute. But there is no suggestion in sections 5994 to 6252, or elsewhere that we have been able to discover, that an administrator may not, after removal, be required to account to tbe probate court .for past transactions, and that court thereupon adjudicate such account. There is an apparent legislative intent that such course is proper, found in tbe act of April 11, 1884 (section 6175», Revised Statutes), by which it is provided that where an administrator bas died before tbe estate bas been fully administered, bis executor or administrator is required to render a final account of such administration Avithin six months. And, in tbe recent case of the estate of Plummer Sidwell, deceased, 67 Ohio St., 464, this court held, in giving construction to that statute, that exceptions might be taken to such account, ■ and that it was a duty incumbent on the administrator to defend tbe estate in tbe probate court, and by appeal if necessary. Prior to tbe passage of this statute it bad been held that there was no power to compel such action by tbe administrator of a deceased administrator, and that, in that condition, tbe only remedy was a suit on tbe bond. But in such case there was no person in esse under any obligation to fulfill tbe duty, tbe. party who had engaged to do it having deceased. In the present case there is a party living upon whom the duty rests which duty is expressed in the plain terms hereinbefore given. Is it not entirely clear that such accounting was required in this case, if not by the court at least by the law? Section 6175a provides that the probate court is the tribunal to settle the accounts of an administrator whose powers have ceased by death. Can it be said that, giving effect to the spirit of this law, it is any less the tribunal in a case where the administrator’s powers have ceased by removal?

There is, too, force in the suggestion that, if the administrator was not otherwise before the court for the purpose of an accounting, he was there by virtue of the proceeding then pending. It is clearly within the power of the probate court to order the filing of an account by a delinquent administrator whether moved thereto by an interested party or not.' Such filing relates to his conduct as administrator. Miller was before the court in a matter respecting his conduct. The entry should be taken as a whole. The same adjudication which ordered his removal likewise ordered him to account. It is not doubted that the order of removal was effective. How can he plead want of jurisdiction as to one part of the adjudication more than to the other.

We are of opinion that the probate court had jurisdiction of the person of the administrator as well as of the subject-matter, and that there was no error in the holding and judgment of the circuit court to that effect.

Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


source: Caselaw Access Project

author: Burket, C. J.

license: Public Domain

text:
    The Northwestern Ohio Natural Gas Co. v. Ullery.

      Oil and gas lease — Covering separate tracts of land — Lease extends to heirs of parties — Different persons become owners — ■ Each owner entitled to royalty arising from his tract.

    Where an oil and gas lease is made by one party to another covering two or more separate tracts of land, and is made to extend to the heirs and assigns of the parties, and different persons become the owners of such different tracts, each owner is entitled to the oil and gas produced on his tract, and to the royalty and rental arising from such tract.
    (Decided April 28, 1903.)
    Error to the Circuit Court of Wood county.
    • John A. Taylor was the owner of two tracts of land cornering each other, one containing forty acres and the other sixty. He executed and delivered the following written instrument: '
    “This agreement made and entered into this tenth day of June, A. D. 1886, by and between John A. Taylor, of Cass township, of the county of Hancock, and state of Ohio, of the first part, and William Duke, Jr., of Wellsville, N. Y., of the second part.
    “Witnesseth: That the said party of the first part, for the consideration of the covenants and agreements hereinafter mentioned, has granted, demised and let unto the party of the second part, his heirs or assigns, for the purpose and the exclusive right of drilling and operating for petroleum and gas, all that certain tract of land situated in Cass township, Hancock county, and state of Ohio, bounded and described as follows: to-wit: The south half of the west half of the southwest quarter section No. 2, and three-fourths (%) of the north half of the northeast quarter, section No. three (3) Cass township, Hancock county, Ohio, containing one hundred acres, he the same more or less, together with the .right of using sufficient water therefrom necessary to the operation thereof, excepting from wells now located except by consent of first party, the right of way over on said premises the right to lay pipes to convey oil or gas, and the right to remove any machinery or fixtures placed on said premises by the party of the second part.
    “The party of the second part, his heirs or assigns, to have and to hold the said premises for and during the term of five years from the date hereof and as much longer as oil or gas is produced or found in paying quantities thereon.
    “In consideration of said grant and demise, the said party of the second part agree to give or pay to the said party of the first part, the,full equal one-eighth part of all the petroleum produced or found on the said premises, and to deliver the same, free of expense, into tanks or pipe lines to the credit of the first party. And should gas be found in sufficient quantities to justify the party of the second part in marketing the same, the consideration in full to the party of the first part, instead of the petroleum royalty, shall be $100 per annum for the gas from each well so long as it shall be sold therefrom.
    “It is further agreed that the party of the second part shall complete a well on the above described premises within nine months from the date hereof, and in case of failure to complete such well within such time, the said party of the second part agree to pay to the said party of the first part, for such delay, a yearly rental of fifty cents per acre on the premises herein leased from the time of completing such well as above specified until such well shall be completed; the said yearly rental amounting to fifty dollars, shall be deposited to the credit of the party of the first part in the First National Bank, Findlay, Ohio, or be paid direct to the said party; and a failure to complete such well, or to make such deposit or payment as above mentioned, shall render this lease null and void and to remain without effect between the parties hereto.
    “Above named payment to be made by the first day of March in each year.
    “Party of the second part to furnish all the gas necessary for domestic use, including not to exceed five hundred feet of one-inch pipe to convey the gas from the well to the dwelling, free of charge.
    “It is understood between the parties of this agreement that all conditions between the parties hereunto shall extend to their heirs, executors and assigns.
    “In witness whereof, we, the said parties of the first and second parts, hereunto set our hands and seals, the day and year first above written.
    “John A. Taylor, (Seal).
    “Sophia A. Taylor, (Seal).
    “Wm. Duke, Jr., (Seal).”
    This instrument was duly witnessed, acknowledged and recorded, and was afterward duly assigned to the plaintiff in error.
    Afterward extensions were made by writing the following Exhibits B and 0 on the back of said instrument :
    “exhibit ‘b.’
    “May 15, 1891.
    “In consideration of the sum of $150 to me paid by The N. W. O. N. Gas Go. and further agreement to pay me the same sum on or before J une 10,1892, I consent to the extension of all the terms and conditions of the within lease for two years from June 10, 1891, or until June 10,1893.
    “John A. Taylor.
    “Witness: L. C. Beatty.”
    “exhibit ‘c.’
    “In consideration of the sum of $150 to me in hand paid by The N. W. O. N. Gas Co. and the further agreement to pay one hundred and fifty each year in advance, I do hereby agree to extend the terms and conditions of this within lease from June 10, 1893, to June 10, 1894, and from year to year so long as the $150 shall be paid, and when well is drilled to draw $150.
    “John A. Taylor.
    “Witness: J. C. Noble.
    “April 5, 1893.
    “No. 194.
    “100 acres.”
    Said exhibits were not filed for record and were not recorded. ^
    On the thirty-first day of March, 1894, said John A. Taylor conveyed by warranty deed to said John J. Ullery the said forty-acre tract making the following exception to his warranty: “Except against gas lease and pipe line privileges granted to The Northwestern Ohio Natural Gas Co.”
    On the same day said John A. Taylor conveyed by warranty deed to one Alvin L. Shoop, the said sixty-acre tract, making the following exception to his warranty : “Except against gas lease held by The Northwestern Ohio Natural Gas Co., including all pipe line right of way.”
    On May 24, 1894, the gas company paid to Ullery and Shoop the sum of $150 rental from June 10 1894, to June 10, 1895, and took a receipt signed by both, and each year thereafter tendered the rental to both which was refused, as Mr. Shoop had disposed of his interest in the gas. Tender of four-tenths of the rental was also made to Mr. Ullery and refused by him. The gas company admits that it owes Mr. Ullery $240 of rental.
    On or about June 10, 1895, the gas company drilled a well on said forty-acre tract, which has ever since produced gas in sufficient quantities to require the payment of a rental of $150 per year for that well as provided at the end of the extension of date of April 5, 1893.
    In the month of April, 1895, Mr. Shoop made and delivered a gas lease of his sixty-acre tract to the city of Tiffin, and in a contest between that city and the plaintiff in error here, the city of Tiffin held the gas right. The case came to this court and is found in Northwestern O. N. G. Co. v. Tiffin, 59 Ohio St., 420, where the facts are fully stated, and it there appears that the gas company lost by reason of its failure to have said extensions recorded.
    In the year 1899, Mr. Ullery began his action against the gas company for the recovery of the $150 rental from the tenth day of June, 1895, to the tenth day of June, 1898, with interest. After the answer had been filed the plaintiff below took an assignment from Mr. Shoop of his interest in the rental, and averred that fact in an amendment to his petition. An answer was filed in which many things contained in the petition are admitted and averments made as to other matters, but the foregoing facts are taken from the record and seem to be controlling.
    Judgment was rendered by the court of common pleas in favor of Mr. Ullery for the full amount claimed, and this was affirmed by the circuit court. Proper exceptions were saved throughout. Thereupon a petition in error was filed in this court seeking to reverse the judgments of the courts below.

      Messrs. Doyle & Lewis and Messrs. Troup & Truesdale, for plaintiff in error.
    If the title of Taylor had failed, and his tenant was ejected from the sixty acres by a superior title, Taylor could not recover, upon this lease, the full rental for the one hundred acres after the tenant was dispossessed. Neither can his assignee of the forty acres, Ullery. The rule is that eviction from a part of the leased premises, by a stranger, under a paramount title to the landlord entitles the tenant to a proportionate reduction of the rent. Eviction by the landlord releases the tenant from rent while the eviction continues. Wood Land, and Ten., Sec. 481; Crown Mfg. Co. v. Gay, 9 Re., 420; 13 Bull., 188; Taylor Land, and Ten., Sec. 378.
    The tenant’s obligation to pay rent may be apportioned, for as rent is incident to the reversion, whenever that is severed, either by the act of the parties, or the act of the law, the rent wili follow the reversion, and become payable to the assignees of the respective portions thereof. As between such assignees the apportionment will be according to value. But in the absence of proof of value the apportionment will be according to quantities. Taylor Land, and Ten., Sec. 382; Van Rensselaer v. Jones, 2 Barb., 643; Taylor Land, and Ten., Sec. 383, et seq., and Wood Land. and Ten., Sec. 472, et seq.

    Now the rule of law is, that any expulsion of tenant or intentional disturbance by the landlord, or by any other person acting by his authority, or by virtue of a legal right vested in them in any manner, which so seriously disturbs the tenant’s possession as to compel an abandonment of the premises by him, or which deprives him of their beneficial enjoyment, amounts to an eviction and the. rent is suspended from that time. Wood’s Land, and Ten., Sec. 477, et seq., and the authorities cited; Taylor’s Land. & Ten., Secs. 386, 380, 378, 379, and cases cited; Foote v. Cincinnati, 11 Ohio, 410.
    The rule of law is well settled namely, that where a tenant is evicted from a part of the premises, he is entitled to a proportionate reduction of the rent, if the eviction is by a stranger, under á title paramount to his landlords, but where the eviction is by the landlord then he is relieved from the payment of any rent, while evicted. Crown Mfg. Co. v. Gay, 9 Re., 420; 13 Bull., 188.
    It is also a recognized principle in Hilliard v. Gas Coal Co., 41 Ohio St., 668, although held not to apply to the facts of that case. It was distinctly announced in McAlpin v. Woodruff, 11 Ohio St., 120, where it was held that the assignment of dower was a constructive eviction of the lessee to the extent of one-third of the demised premises and one-third of the rent ceased. The following authorities directly support our contention: Moffat v. Strong, 9 Bos., 57; Carter v. Burr, 39 Barb., N. Y., 59; Vaughan v. Blanchard, 1 Yeates, 175; Hegeman v. McArthur, 1 E. D. S., 147; Smith v. Malings, Cro. Jac., 160; Stevenson v. Lombard, 2 East, 575; Fitchburg v. Melvin, 15 Mass., 268; Boodle v. Campbell, 7 M. & G., 386; Bauders v. Fletcher, 11 Serg. & Rawle, 419; Mayor v. White, 15 M. & W., 571; Lansing v. Van Alstyne, 2 Wend., 561; Smith v. Shepard, 15 Pick., 147; Seabrook v. Myers, (Pa.), cited Wood L. & O., 1117;
      Gillespie v. Thomas, 15 Wend., 464; Kingsland v. Clark, 24 Mo., 24; Wiggin v. N. Y., 9 Pai. Ch., 16; David v. Beelman, 5 La. Ann., 545; Taylor Land. & Ten., Secs. 379, 385; Hunt v. Cope, Cou., 242.
    We want to impress on tlie court’s attention that this is an action on the lease, and the covenant therein to pay rent. It is not an action for the value of the gas, not an action for damages, not an action for specific performance, or on the quantum meruit, but on the covenants in this lease to pay rent for the rights conferred in this one hundred acres and that to sustain the plaintiff’s action the court must find in that covenant an obligation to pay him the assignee of the reversion in forty acres out of the one hundred acres the rent which the lessor covenanted to pay for the one hundred acres, sixty acres of which passed by assignment to other parties who evicted the tenant therefrom.
    In conclusion we desire to call especial attention to the oil and gas lease case of Wettengel v. Gormley, 160 Pa. St., 559.

      Mr. E. D. Bloom and Mr. D. R. Jones, for defendant in error.
    These instruments granting to a party oil and gas rights are commonly called leases, and in some respects they bear certain analogies to ordinary leases of land for agricultural or other purpose connected with the surface, but in other respects they are so different from common acreage leases that the court in construing them is governed by different rules than those in the law of landlord and tenant.
    Some of the courts characterize these grants for oil and gas purposes, a mere license, others as a license coupled with an interest; some as a grant of an incorporeal hereditament similar to a conveyance of minerals in place. This latter view seems the more logical one and appears to have been generally followed by the courts. Law of Mines and Mining, 75, et seq.; Brick Co. v. Pond, 38 Ohio St., 65; Petroleum Co. v. Petroleum Co., 72 Pa. St., 173; Funk v. Haldeman, 53 Pa. St., 229; Brown v. Beecher, 120 Pa. St., 590; Lawson v. Kirchner, 40 S. E. Rep., 344; Kitchen v. Smith, 101 Pa. St., 452; Ohio Oil Co. v. Railway Co., 2 Circ. Dec., 505; 4 C. C. R., 210; Herrington v. Wood, 3 Circ. Dec., 475; 6 C. C. R., 326; Meridian Nat. Bank v. McConica, 4 Circ. Dec., 106; 8 C. C. R., 442.
    However regarded, to treat such instruments as simple leases, governed by the ordinary and familiar law of landlord and tenant, would in the majority of cases work great injustice and lead to absurd conclusions. In these instruments the royalty or benefits given or paid to the so-called lessor are usually termed “rents,” but a reasonable interpretation of most of these contracts will enable the court to decide, that they are not “rents,” strictly speaking. Law of Mines and Mining, 117-118.
    It is a fundamental principle of law that in interpreting every contract the court will look to the objects sought to be obtained and endeavor to carry out the intention of the parties as it appears from the contract. Chamberlain v. Railway Co., 15 Ohio St., 225; Railway Co. v. Railway Co., 44 Ohio St., 228; 2 Kent original paging 555 and 567; Nash v. Towne, 72 U. S. (5 Wall.), 689; Crislip v. Cain, 19 W. Va., 438.
    Each purchaser from Taylor took the entire fee of the land purchased by him subject to the lease. Oil and gas while in the ground are a part of the fee and belong to tbe realty. From tbe nature of these minerals our courts at the present time in dealing with questions arising upon an oil and gas lease, apply the rules of law which are recognized in cases involving the fixed minerals, such as coal, copper, iron, etc. In regard to these, whoever owns or buys the land, owns or buys the minerals thereon and in like manner the courts have declared that oil and gas belong to him who first lawfully brings them to the surface. If brought from wells on A’s land, they are nevertheless his, though drawn from under his neighbor B’s land. Stoughton v. Appeal, 88 Pa. St., 198; South Penn Oil Co. v. McIntyre, 28 S. E. Rep., 922; Kelley v. Ohio Oil Co., 57 Ohio St., 317; Law of Mines and Mining, 30; also page 4, citing Adam v. Iron Co., 7 Cus., 361; Lacustrine Fertilizer Co. v. Fertilizer Co., 82 N. Y., 476; Stratton v. Lyons, 53 Vt., 641; Caldwell v. Fulton, 31 Pa. St., 475; Pa. Salt Mfg. Co. v. Neel, 54 Pa. St., 66; Hartwell v. Cammon, 10 N. J. Eq., 128; Bryan’s Law of Pet. and Nat. Gas, 20-32.
    In Washburne’s Real Property, Vol. 1, original paging 342, this principle is set forth: “But an expulsion from a part of the premises will not affect the tenant’s liability under any other covenants in his lease than for the payment of rent,” as, for instance the “covenant to repair,” citing Morrison v. Chadwick, 7 C. B., 283; La Farge v. Mansfield, 31 Barb., 345.
    The case of Tiley v. Moyers, 43 Pa. St., 404, lays down-the rule which we think applicable to this case.
    In answer to the argument of plaintiff in error, it is not conceded that lessees are required to drill but one well on the premises. On the contrary there is an implied agreement that they shall drill a sufficient number of wells to extract the oil and gas from under said premises and properly protect lines and with the completion of each paying gas well, it is clear- from, the terms of the contract, the annual payments to lessor will be increased. Harris v. Ohio Oil Co., 57 Ohio St., 118.
    There is no reason for an apportionment of this', well rental according to the acreage held by Shoop and Ullery for the reason that the court is not authorized to take judicial notice of the oil or gas in the ground and to say the gas drawn from the entire tract would be taken from each of the parties in proportion to the number of acres each held. As a matter of fact and common knowledge, we know that the gas might be taken from Ullery’s land without affecting the supply under the sixty (60) acres in the least. It might be drawn from some underground reservoir miles away and in opposite direction. In general, the court is-not authorized to take judicial notice of the existence of oil or gas until it becomes visible, tangible or “odorous,” and then it would seem to belong to him on whose land it is found. The court may, however, take notice of gas or oil in the ground when in proximity to other producing wells and thus uphold the rule requiring that iines be protected.
   Burket, C. J.

It will be noticed that the extension of April 5,1893, requires the rental of $150 to be paid each year in advance, and this must prevail over the averment in the answer that it is not required to be paid in advance. Whether the rental was tendered in advance each year and refused is not clear from the record, but it will be here regarded as having been so tendered and refused.

The plaintiff in error claims that it was entitled to judgment in its favor except as to the $240 upon the conceded facts found in the pleadings, and which are stated above so far as controlling or material, its claim being that the gas lease entered into by Mr. Taylor was an entirety and indivisible, that the rental of $150 was for the whole one hundred acres, that it was evicted from the sixty acres by the lease of Mr. Shoop to the city of Tiffin, and that in no event can Mr. Ullery, the owner of the forty acres upon which the gas well is situated, recover more than his proportionate share of the yearly rental, $60, out of the $150.

While the lease does not expressly state that the lands may be subdivided, such subdivision seems to be implied, because it is made to extend to heirs, executors and assigns. There might be many heirs and many assigns. In this case there are two assigns, and it would seem that each would be entitled to his separate and individual interest in the oil or gas produced on his part of the land. But whether each is ,so entitled does not depend so much upon the word ' assigns, as upon the principle of entirety and divisbility in such cases.

We fully concur in the doctrine of the apportionment of rents so ably argued by. counsel for plaintiff in error, but that doctrine does not dispose of the question as to whether the lands may be subdivided nor of the question as to the payment of the rental for each gas well.

In any view that may be taken of this case, the question comes back to the point as to whether the lease is entire and the lands and rental of gas wells indivisible, in short, whether the principle of Wet tengel v. Gormley, 160 Pa. St., 559, is applicable, and if so, whether it shall be followed or not. In that case, the court held as follows:

“Where three tracts of land, all subject to the same oil and gas lease, are devised respectively to the owner’s three children, the royalties accruing under the lease are divisible among the three devisees, although all of the wells are sunk on only one of the three tracts.
“Owing to the vagrant character of oil and gas, a lease of these substances partakes of the character of a lease for general tillage rather than that of a lease for mining or quarrying the solid minerals.”

We have several times had occasion to carefully examine and consider that case and it has always failed to receive the approval of our judgment; and upon a reconsideration here, it again fails to convince us of its soundness. And the reconsideration of the same principle in the same case in Wettengel v. Gormley, 184 Pa. St., 354, fails to strengthen the original case. Those cases were between devisees, and the question as between the lessee and purchasers from the lessor, was not involved, and therefore the principle of those cases is not directly applicable here. But even if it were we do not regard it sound.

Oil in the rock adheres to the real estate, and is a part thereof until brought to the surface, when it becomes personalty, just as a tree, or stone coal or fire clay, is a part of the realty until severed, when it becomes personalty.

That which is a part of the land before severance, belongs to the owner of the land after severance as well as before. The fact that oil and gas are vagrant and transitory in their nature does not prevent them from adhering to and becoming part of the land while passing from one tract to another, and while so in one tract they are a part of that tract and belong to the owner thereof until they escape from such tract, and if brought to the. surface before such escape, they become personal property belonging to the owner of the land.

It, therefore, irresistibly follows that the oil or gas taken from a well on a particular tract of land belongs to the owner of that tract even though the contract under which the well was drilled included other tracts of land. Because the contract of production may have included two or more tracts of land, such contract cannot have the force of taking from the owner of one tract the oil or gas adhering to such tract for the time being, and bestowing it upon the owner of another tract where it may never have been. As oil and gas are migratory in character no one can tell from whence they came, or whither they are going, and they must, therefore, belong to him upon whose lands they are captured. No one else can have any ownership in them, and a man can be awarded only that which he owns. Kelley v. Ohio Oil Co., 57 Ohio St., 317. In that case this court said, on page 328: '

“Petroleum oil is a mineral, and while in the earth, it is part of the realty, and should it move from place to place by percolation or otherwise, it forms part of that tract of land in which it tarries for the time being, and if it moves to the next adjoining tract, it becomes part and parcel of that tract; and it forms part of some tract, until it reaches a well and is raised to the surface, and then, for the first time, it becomes the subject of distinct ownership separate from the realty, and becomes personal property, the property of the person into whose well it came. And this is so whether the oil moves, percolates, or exists in pools or deposits. In either event, it is property of, and belongs to, the person who reaches it by means of a well, and severs it from the realty and converts it into personalty.”

The same rule applies to all property. Crops grown upon lands'belong to the owner of the land, even though they may have been planted under a contract covering two or more tracts, unless the contract expressly provides otherwise.

But it is urged that the lessee having contracted to deal with but one man, cannot be compelled to deal severally with many; and that his rights in this regard must be respected. True he contracted with one only, as to two separate tracts of land, but in the lease he agreed that his contract should extend to heirs and assigns, and as there may be many of these, it is more convenient for him to deal with the owners of the land severally, than jointly with all the owners of both tracts. The words heirs and assigns in such cases mean the heirs and assigns as to each tract separately, rather than the heirs and assigns as to both jointly. This is for the benefit of both parties, and enables the lessee to sell the lease as to-one tract and retain it as to the other, or to sell both to different parties.

While it is true that up to the time a well was completed, the $150 rental was for both tracts, the last extension expressly provided that: “When well is drilled to draw $150.” It may be that the payment of the rental of $150 for this one well would have had the effect to hold the lease on both tracts as between the original parties, or as to third parties in case the extension had been recorded; but be that as it may, it is clear that the owner of the forty-acre tract upon which, the well is situated is entitled, under this last extension, to the rental of $150 each year for that well, and that, therefore, the judgments of the courts below are right, and are therefore

Affirmed.

Spear, Shauck, Price and Crew, JJ., concur.


author: By the Court:

text:
    The State of Ohio v. Voute and Kinney.

      Making out and presenting false claims to public officers — Section 7075, Revised Statutes — Indictment charging certificar tion of fraudulent pay roll — To municipal auditor — Sufficient under said statute — Motion to quash should be overruled, when — Interpretation of law — Court procedure.

    An indictment under Section 7075, Revised Statutes, charging the ■defendant with having unlawfully, knowingly and feloniously made out and presented for payment, and certified as correct to the auditor of a municipal corporation, a false and fraudulent pay roll against said corporation for the purpose of procuring an allowance of the same by said auditor and said corporation, and for the purpose of procuring an order for payment of the same out of the treasury of such corporation, with intent to defraud, sufficiently charges an offense under said section, and á motion to quash the indictment because it does not show authority in the auditor to allow or pay the pay roll should be overruled.
    (Decided April 28, 1903.)
    Exceptions to the Court of Common Pleas of Lucas county.

      Mr. Charles E. Sumner, prosecuting attorney, for plaintiff in error.

      Mr. D. H. Commager; Mr. Parks Hone; Messrs. Brown, Geddes & Bodman and Air. Clarence Brown for defendants in error.
   By the Court:

The defendants in error were indicted for making out, presenting for payment and certifying as correct, a false and fraudulent pay roll. The indictment charges that, the defendants unlawfully, knowingly and feloniously made out and presented for payment, and certified as correct, to the auditor of the city of Toledo, a false and fraudulent pay roll against the said city, setting out the pay roll in full; that the pay roll was false and fraudulent in that it contained the names of two persons who did not work for the city, and that their names should not have been on said pay roll; that said pay roll purported to show that said persons had earned for services rendered to the city the sum of thirty dollars, whereas they had earned nothing for services rendered to the city,, and that the pay roll was false and fictitious to the extent of thirty dollars. The indictment also charges that Voute was the duly elected,, qualified and acting street commissioner of the city of Toledo, and that Kinney was a clerk in the office of Voute; that they “did unlawfully and fraudulently make out and certify, as correct and presented said false and fraudulent pay roll to George U. Roulet, then and there the auditor of the said city of Toledo as aforesaid, for the purpose of procuring the allowance of the said pay roll by the said auditor and the said city of Toledo, and for the purpose of procuring an order for the payment of said pay roll- out of the treasury of said city of Toledo, with intent to de-. fraud, they, the said Charles H. Voute and William J. Kinney, then and there, well knowing said pay roll to be false and fraudulent as aforesaid.” The defendants made a motion to quash the indictment, which motion was sustained, it being contended by the defendants, and so held by the court of common pleas, that the auditor of Toledo was not authorized by law to allow or pay the claim thus made out and presented, and that, therefore, no offense was charged and that for that reason the indictment should be quashed. It is claimed that an indictment for this offense under Section 7075, Revised Statutes, must show that the false claim was presented for allowance to an officer authorized to allow it, or was presented- for payment to an officer who was, under the circumstances, authorized to pay it; and that the street commissioner had no right to certify a pay roll and the auditor in this case had neither an authority to allow nor to pay the claim. Whatever may have been the duties and powers of the officers in this instance, it seems very clear to us that they could not be called in question in determining whether a crime was charged in the indictment; because the powers and duties of these officers do not enter into the statutory definition of the crime. Leaving out the words of Section 7075, Revised Statutes, which do not apply in the present case, the section reads as follows: “Whoever, knowing the same to be false or fraudulent, makes out or presents for payment, or certifies as correct * * * to the auditor * * * of any municipal corporation any claim, pay roll *' * * or other evidence of indebtedness, false or fraudulent in whole or in part, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the treasury of Said * . * * municipal corporation, shall, if such evidence of indebtedness so made out and presented, or certified * * * is false or fraudulent to the amount of thirty-five dollars or more, be imprisoned in the penitentiary * * * or, if false or fraudulent to an amount less than that sum, be fined or imprisoned * * * or both.” It is evident from a careful reading of this language that whether the auditor has power in himself to allow or pay the claim or not, the presentation of a fraudulent claim to him for the purpose of procuring from him or any other proper authority .the allowance of the same, or for the purpose of procuring from him or any other person authorized to make it, an order for the payment thereof out of the treasury of the municipal corporation, may constitute an offense under this statute. This indictment charges that the pay roll was presented to the auditor for the purpose of procuring the allowance of the same by the auditor and the city of Toledo, and for the purpose of procuring an order for the payment of the pay roll out of the treasury of the city. The indictment was sufficient and the motion to quash ought to have been overruled.

We do not regard' the decision in Hauck v. State, 45 Ohio St., 439, as in any respect conflicting with the views here expressed.

Exceptions sustained.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


author: By the Court :

text:
    Pittsburgh Coal Co. v. The Youghiogheny & Ohio Coal Co. et al.

      Bill of exceptions — When to be presented for allowance — Sections 5301 and 5302, Revised Statutes — Sections as to allowance amended — Effect of amendment on bills respectively before and after amendment.

    Bills of exceptions as to trials and judgments before January 2, 1903, were required to be prepared and allowed under Sections 5301 and 5302, Revised Statutes, as these sections stood ■before the amendment thereof, October 22, 1902, but as to judgments rendered after January 1, 1903, the bills of exceptions must be prepared and allowed as prescribed in said amendment of those sections.
    (Decided May 12, 1903.)
    Error to the Circuit Court of Cuyahoga county.
    The defendants in error made a motion to strike the bill of exceptions from the files. The cause was tried in the circuit court on appeal and judgment rendered late in the month of December, 1902. A bill of exceptions was allowed after January 1, 1903, under Sections 5301 and 5302, Revised Statutes, as they stood before the amendment of those sections, October 22, 1902. The defendants in error claimed that the bill of exceptions should have been allowed under those sections as amended. The bill of exceptions is conceded to have been properly allowed if controlled by the sections before amendment.

      Messrs. Wilcox, Collister, Hagan & Parmely and Messrs. Goulder, Holding & Masten, for plaintiff in error.

      Messrs. Hoyt, Dustin & Kelly and Messrs. Williamson, Gushing & Clarice, for defendants in error.
   By the Court :

Section 2 of the act of October 22, 1902, amending Sections 5301 and 5302, Revised Statutes, provides that the act shall be held to apply after January 1, 1903, to all pending cases, and repeals those sections and section 3 of the act provides that it shall take effect and be in force from and after its passage. In view of Section 79, Revised Statutes, and the holdings of this court as to the effect of repealing sections, where the new act is invalid, it must follow that the repealed sections were applicable to and controlled until the new sections became applicable after January 1, 1903, and that as to all trials and judgments before January 2, 1903, the bills of exceptions had to be prepared and allowed under said sections 5301 and 5302, as they stood before said amendment, and that as to all judgments rendered after January 1, 1903, the sections as amended were and are applicable and controlling.

Motion overruled.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


author: Crew, J.

text:
    Read, as Assignee for the Creditors of Lindsay, v. The Toledo Loan Co.

      Execution and acknowledgment of mortgage — Section Jf106, Revised Statutes — Stockholders in corporation — As witnesses sign mortgage — Of which corporation is grantee — Signatures do not invalidate mortgage — Act of notary public ministerial and not judicial.

    1. A mortgage executed agreeably to the provisions of Section 4106, Revised Statutes of Ohio, and attested and acknowledged as therein provided, is not invalid and cannot be impeached, in the absence of fraud and undue advantage, merely because the witnesses who attest the signature of the mortgagor and the notary public taking his acknowledgment are stockholders of, but not otherwise interested in the corporation named in said mortgage as grantee.
    2. In taking and certifying an acknowledgment, as provided in said Section 4106, the act of the notary public or other officer taking and certifying the same is a ministerial and not a judicial act.
    (Decided May 19, 1903.)
    Error to the Circuit Court of Lucas county.
    This action was originally commenced in the probate court of Lucas county, Ohio, by William H. A. Read, as assignee for the benefit of creditors of Cary D. Lindsay, by the filing of a petition in said court, asking for an order to sell certain of the assigned real estate to pay debts. To this proceeding the defendant in error, The Toledo Loan Co., and others, were made parties defendant. The Toledo Loan Co. filed its answer and cross-petition asserting a claim and lien against the property asked to be sold, to the extent of $4,800, by virtue of a certain mortgage held by it, and which it alleged had been duly executed and delivered to it by Cary D. Lindsay, the assignor. To this claim of The Toledo Loan Co., the assignee, plaintiff in error, replied admitting the execution and delivery by his assignor to said loan company of said “pretended mortgage,” but denied the validity of said instrument as a mortgage, on the ground and for the reasons as alleged in his reply, that the same was defectively executed and had not been sufficiently and properly acknowledged or witnessed according to law, in that, the witnesses to said instrument and the notary public who. took the acknowledgment thereof, were each stockholders in said, The Toledo Loan Co., grantee in said instrument. The instrument in controversy was found and held by the probate court to be a valid mortgage, and the claim and lien of the loan company thereunder was sustained. Upon appeal by the assignee to the court of common pleas, a like finding and judgment was made and entered by that court. Thereupon the case was taken, on error by the assignee, to the circuit court of Lucas county,, where the judgment of said' court of common pleas was affirmed. To reverse this judgment of affirmance, the present proceeding in error is prosecuted.

      Mr. W. H. A. Read, for plaintiff in error.
    An acknowledgment of the execution of a deed taken by a party to it does not authorize it to be recorded, and the record of it imparts no .notice, to subsequent purchasers or incumbrances. Wilson v. Traer, 20 Ia., 231; Beaman v. Whitney, 20 Me., 413; Withers v. Baird, 7 Watts, 227; Brown v. Moore, 38 Tex., 645; Stevens v. Hampton, 46 Mo., 404; Hammers v. Doyle, 61 Ill., 307; Green v. Abraham, 43 Ark., 420.

      The record of a mortgage, the acknowledgment of which is void, imparts no notice to third persons, since a mortgage without a valid acknowledgment is not entitled to record. Lee v. Murphy, 51 Pac. Rep., 549.
    And it was held that “the acknowledgment of the instrument was void, and did not authorize the record of the instrument, and, as a consequence, such record did not impart any notice to third persons of the mortgagee’s rights under it; but, as between the parties to it, the mortgage is in full force and of binding effect. Brown v. Moore, 38 Tex., 645; Groesbeck v. Seeley, 13 Mich., 329; Stevens v. Hampton, 46 Mo., 404; Wasson v. Connor, 54 Miss., 351; Davis v. Beazley, 75 Va., 491; Bowden v. Parrish, (Va.) 9 S. E. Rep., 616; Withers v. Baird, 32 Am. Dec., 754. See also Devlin Deeds, Secs. 476, 477; Proff Not. (2 ed.), Secs. 42, 43; Webb, Record Titles, Sec. 67. If these decisions lead to a right conclusion, and we think they do, the record of the mortgage imparts no knowledge or notice- to defendants, and the acknowledgment was void.
    The taking of an acknowledgment before mortgagee, who is also an officer generally authorized to take acknowledgments of such instruments, is against the policy, of the law, and an instrument so acknowledged is fraudulent and void as to other mortgage creditors. Hammers v. Doyle, 61 Ill., 307; Breereton v. Bennett, 15 Col., 254.
    A cashier of a bank who is not a stockholder and is employed on a fixed salary, and whatever fees he receives as a notary public are his individually, is not disqualified to take an acknowledgment to a mortgage given the bank. Bank v. Oberhaus, 57 Pac. Rep., 1070.

      The statute which requires that conveyances of land shall be attested by two witnesses, intends an attestation by witnesses who at the time are disinterested. Therefore a stockholder of a private pecuniary corporation is not qualified to be an attesting witness to the execution of a deed to the corporation. Savings Bank v. Spencer, 26 Conn., 195.
    When an instrument was made and executed apparently according to the statutes, but one of the two subscribing witnesses was the wife of the grantor, it was held that such instrument was not a deed of land within the statute, consequently was not required to be recorded, and the recording of it, therefore, was not constructive notice to third persons. Carter v. Champion, 8 Conn., 519.
    The acknowledgment of a deed by the grantee therein is void. Hogans v. Carruth, 18 Fla., 587.
    The acknowledgment of a deed cannot be taken by a grantee or party interested therein. Savings Bank v. Rivers, 36 Fla., 575.
    A case directly in point and in which a full line of authorities are collected and the position we contend for fully sustained, is Kothe v. Krag-Reynolds Co., 50 N. E. Rep., 595.
    The acknowledgment of a mortgage taken before one of the parties is void. Hubble v. Wright, 23 Ind., 322; West v. Krebaum, 88 Ill., 263.
    An acknowledgment of a mortgage taken by a notary public, who is a stockholder in a bank, which is a beneficiary under the mortgage, is void. Smith v. Clark, 69 N. W. Rep., 1011.
    An acknowledgment of a chattel mortgage made to a partnership before a notary public, who is one of the partners, is void and the récord of such mortgage will not impart constructive notice to third parties. Bank v. Radtke, 87 Ia., 363.
    An acknowledgment of an instrument táken and certified by a person interested in it as grantee should not be admitted to record; and a record thereof would not operate as constructive notice to a subsequent purchaser. Wilson v. Traer, 20 Ia., 231.
    The acknowledgment of a deed of trust taken by the trustee therein as notary public is void. A deed cannot be read in evidence without some proof of its execution. Dail v. Moore, 51 Mo., 589; Stevens v. Hampton, 46 Mo., 404.
    Although the acknowledgment of a deed of trust taken before one who is trustee in the instrument is worthless, yet the deed is valid between the parties.
    The acknowledgment of a deed becomes necessary principally in order to obtain registration for the purpose of imparting notice to the parties. Black v. Gregg, 58 Mo., 565.
    The record of a deed acknowledged before a person named in the deed as party thereto, is not evidence against one who has no actual notice of the existence of a deed. Hainey v. Alberry, 73 Mo., 427.
    There is no such a thing as a bona fide purchaser without a vendor and a transfer from that vendor for the consideration paid. Laprad v. Sherwood, 79 Mich., 520.
    An acknowledgment of a trust deed taken before an officer, who is himself the trustee therein, with power of sale to pay debts, is void and does not entitle the deed to be recorded. Tavenner v. Barrett, 21 W. Va., 656; Holden v. Brimage, 72 Miss., 228; Jones v. Porter, 59 Miss., 628; Horbach v. Tyrrell, 48 Neb., 514; Childs v. Baker, 24 Neb., 188.

      An officer who is interested in a deed as a party trustee or cestui que trust is disqualified to take acknowledgment of its execution. Robinson v. Willoughby, 70 N. C., 358; Smith v. Castrix, 27 N. C., 518; Long v. Crews, 113 N. C., 256; Armstrong v. Comp, 4 N. Y. Ann., 158.
    A beneficiary in a chattel mortgage is not competent to take an acknowledgment of the instrument. Baxter v. Howell, 7 Tex. Civ. App., 198; Rothschild v. Daugher, 85 Tex., 332.
    A managing agent of a building association, who is a large stockholder and receives as compensation a percentage of the gross earnings, is disqualified to act as notary public in taking an acknowledgment of a mortgage to the association. He could not take the acknowledgment of the parties and his act in attempting it was a nullity. Sample v. Irwin, 45 Tex., 573; Morton v. Lowell, 56 Tex., 646; Kutch v. Holley, 77 Tex., 222; 14 S. W. Rep., 32. From the foregoing it must be held that there was no lien and there was error in enforcing it. Miles v. Kelley, 40 S. W. Rep., 599.
    A grantee in a deed or a beneficiary under it is not allowed, as an officer, to take an acknowledgment of the deed by the grantor with a view to its registration. Davis v. Beazley, 75 Va., 491.
    Acknowledgment of deed before grantee, the trustee as officer is invalid and its recordation upon such acknowledgment does not give constructive notice. Davis v. Beazley, 75 Va., 491.
    The clerk of a county court in which a deed, is to be recorded, can not take and certify the acknowledgment of the grantor in a deed of trust to secure debts in which the clerk is the trustee. • The act is a judicial one. A recordation on such an acknowledgment is void. Nicholson v. Charity School, 93 Va., 101.
    A trust deed in which the acknowledgment .is taken before the trustee named therein is void. Veneer Co. v. Kurth, 19 S. E. Rep., 878.
    A deed of trust is executed by a man and his wife to two trustees to secure a debt; the grantors in the deed acknowledged it before one of the grantees, a trustee, as a notary public; and on this acknowledgment it is admitted to record. Held: Such acknowledgment and recordation are invalid, and the deed is an absolute nullity as to the married woman, and is to be regarded as an unrecorded deed as to the male grantor. Dussaume v. Burnett, 5 Ia., 95; Kimball v. Johnson, 14 Wis., 674; Tavenner v. Barrett, 21 W. Va., 657.
    We cite the court to the following Ohio decisions: Kilbourne v. Fay, 29 Ohio St., 264; Fosdick v. Barr, 3 Ohio St., 471; Patterson v. Pease, 5 Ohio, 190; Richardson v. Bates, 8 Ohio, 261; Langmede v. Weaver, 65 Ohio St., 17; Amick v. Woodworth, 58 Ohio St., 86; White v. Denman, 16 Ohio, 60.
    Notice of prior unrecorded mortgage will not, under the Ohio statute, postpone the second mortgage. Nor does it make any difference that the first mortgage was given to secure money borrowed to pay for the land. A third person advancing money to enable a purchaser to buy, can not claim a vendor’s lien. Stansell v. Roberts, 13 Ohio, 149.
    If an instrument be not such as the law authorizes to be recorded, the act of recording is a nullity. Ramsey v. Riley, 13 Ohio, 157.
    Under the statutes of Ohio, a mortgage takes effect fr;om the date of its delivery for record; and until so delivered will not prevail against a junior recorded mortgage, although the junior mortgagee had notice of the existence of the prior mortgage. An unrecorded mortgage must be postponed to the lien of a der the Ohio statute, postpone the second mortgage. Mayham v. Coombs, 14 Ohio, 429.
    A mortgage has no effect, either in law or equity, previous to delivery to the recorder of the county for record. Holliday v. Bank, 16 Ohio, 534.
    An unrecorded mortgage or equitable assignment is good and effectual between the parties; but as to the third persons, it takes effect, either at law or in equity, only from the time it is duly recorded. Bloom v. Noggle, 4 Ohio St., 46; Erwin v. Shuey, 8 Ohio St., 510.
    The really pioneer case upon the point in question is Hanes v. Tiffany, 25 Ohio St., 549.
    A defective mortgage when reformed will not affect the lien of a judgment rendered between'the date of the execution and the reformation of the mortgage. Van Thorniley v. Peters, 26 Ohio St., 471.
    Where a chattel mortgage is declared void by the statutes, as “against the creditors of the mortgagee,” and the mortgagor dies in possession of the mortgaged property leaving an insolvent estate, such property becomes assets in the hands of the executor or administrator of the mortgagor, whose duty, as well as right it is to defend his possession against the claim of the mortgagee, notwithstanding such mortgage was valid as against the mortgagor. Lindeman v. Ingham, 36 Ohio St., 1.
    If it were not for our statute on the subject of mortgages, this equitable mortgage would prevail over all lienholders, and other claimants, except bona -fide purchasers for value. But it has been held, in a long series of decisions, that a mortgage has no effect, under the statute, either in law or equity as against subsequent acquired liens, until its execution according to the statute, and its delivery to the recorder of the proper county for record. Strang v. Beach, 11 Ohio St., 283; Bercaw v. Cockerill, 20 Ohio St., 163; Bundy v. Iron Co., 38 Ohio St., 300.
    A mortgage corrected by a decree of court, under authority conferred by the act of' April 17, 1857, as between the mortgagee and a subsequent vendee, who has taken the property bona 'fide, in payment of a preexisting debt, will take effect only from the time of correction. Clements v. Doerner, 40 Ohio St., 632; Hitesman v. Donnel, 40 Ohio St., 287; Doherty v. Stimmel, 40 Ohio St., 294.
    A mortgage void as to creditors is void as against an assignee for the benefit of creditors. Blandy v. Benedict, 42 Ohio St., 295.
    The purchaser from the mortgagor of lands incumbered by an unrecorded mortgage, takes title thereto free from such incumbrance, even if he has full knowledge and notice of its existence, and that it is unpaid at the date of his purchase. Buildimg Assn. v. Clark, 43 Ohio St., 427; Westlake v. Westlake, 47 Ohio St., 315.
    Under the statutes of Ohio, providing for the execution and recording of mortgages of lands, a mortgage duly executed but not recorded, is between the parties thereto, a valid specific lien on the lands described; but is void, and of no effect, as against an assignee for the benefit of creditors, holding the legal title by a subsequent deed of assignment from the mortgagor. Snyder v. Betz, 1 Circ. Dec., 602; 2 C. C. R., 485.
    Late utterances of Supreme Court of this state are found in Straman, Admr., v. Rechtine et al., 58 Ohio St., 443; Amick v. Woodworth, 58 Ohio St., 86; Wright v. Bank, 59 Ohio St., 80.
    While we do not cite as an authority to this court we adopt as. a part of our argument Bank v. Iron Co., 11 Re., 904; 30 Bull., 382; we also call attention to Building & Loan Assn. v. Mensch, 99 Ill. App., 67; 196 Ill., 554; Donovan v. Elevator Co., 8 N. D., 585; Wilson v. Griess, 90 N. W. Rep., 866.

      Messrs. King & Tracy, for defendant in error.
    In the case of an assignment by an insolvent debtor for the benefit of creditors, the rights of the assignee in the property assigned are no greater than those of the debtor prior to the assignment. Hodgson v. Barrett, 33 Ohio St., 63; Morgan v. Kinney, 38 Ohio St., 610; Mannix, Assn., v. Purcell et al., 46 Ohio St., 102.
    But whatever may be the precise relation of the assignee to the property of his assignor we respectfully submit that creditors of the assigned estate would not, and that the assignee does not, occupy the position of a subsequent good faith purchaser without notice. Stewart v. Hopkins, 30 Ohio St., 502; Building Assn. v. Clark, 43 Ohio St., 427; Wright v. Bank, 59 Ohio St., 80; Sec. 4106, Rev. Stat.
    It will be noticed that the statute simply provides that the instrument shall be signed and acknowledged in the presence of two witnesses.

    There is absolutely nothing in the statute suggesting that a witness would be disqualified by reason of being interested in the transaction evidenced by the instrument witnessed. Doe v. Turner, 7 Ohio (pt. 2), 216; Amick v. Woodworth, 58 Ohio St., 86.
    Section 110, Revised Statutes, provides that the governor may appoint as notaries public as many persons as he may deem necessary. See also provisions of Sections 111 and 118, Revised Statutes.
    From the fact that section 111, supra, expressly provides that persons holding the positions in banks therein mentioned, may not act in any matter in which such bank is interested, we believe it is fair to argue upon the familiar principle of construction of statutes that officers in other corporations are not prohibited from taking acknowledgments to instruments in which their respective corporations may be interested.
    The best definition that we have ever seen of what constitutes a ministerial act is found in the case of Flourney v. Jeffersonville, 17 Ind., 169.
    The act of a notary public in Ohio in certifying an acknowledgment is clearly a ministerial act within the foregoing definition. The Supreme Court of Ohio, however, has expressly decided that the act of a notary public in certifying an acknowledgment', is a ministerial act. Truman v. Lore, 14 Ohio St., 144; Williamson v. Carskadden, 36 Ohio St., 664.
    We believe that the apparent conflict of authority upon the question as to whether a notary public is incapacitated in such a case as this, is mainly accounted for by the fact that under some statutes in some states the act of the notary in taking and certifying an acknowledgment is held to be a judicial act; whereas, in other states, as in Ohio, such act is purely a ministerial act.
    In some states the act of a notary in taking and certifying an acknowledgment is held to be a judicial act. Williams v. Baker, 71 Pa. St., 476; Heeter v. Glasgow, 79 Pa. St., 79; Griffith v. Ventress, 91 Ala., 366; Wedel v. Herman, 59 Cal., 514; Stevens v. Hampton, 46 Mo., 404; Long v. Crews, 113 N. C. 256; Cover v. Manaway, 115 Pa. St., 338; Bowden v. Parrish, 86 Va., 67; Pickens v. Knisely, 29 W. Va., 1; Johnston v. Wallace, 53 Miss., 331; Wasson v. Connor, 54 Miss., 351; White v. Connelly, 105 N. C., 65.
    We believe that a notary public in Ohio could be compelled by mandamus to certify to an acknowledgment, provided the grantor presents himself, signs the instrument in his presence, acknowledges it to be his voluntary act and deed, and tenders the notary public the amount of his fee. We do not believe that the notary could legally refuse to take and certify such acknowledgment. He is a public officer, with the powers and duties prescribed by statute, and believe he would be amenable to proceedings in mandamus under Section 6741, Revised Statutes. Bank v. Conway, 17 Fed. Cases, 1202.
    In the case of Nicholson v. Gloucester, 93 Va., 101, the court gives as the reason why an acknowledgment may not be taken by an interested officer the conclusion that such an act is a judicial one.
    Many cases can be cited, supporting the same doctrine, but we shall only refer to a few. Sawyer v. Cox, 63 Ill., 130; Horbach v. Tyrrell, 48 Neb., 514.
    In the following cases it was held that in taking and certifying the acknowledgment of conveyances, an officer exercises a power which is strictly ministerial, and in no sense judicial: Shultz v. Moore, 1 O. F. D., 688; 1 McLean, 520; Halso v. Seawright, 65 Ala., 431; Biscoe v. Byrd, 15 Ark., 655; Banbury v. Arnold, 91 Cal., 609; Stevenson v. Brasher, 91 Ky., 23; Lewis v. Waters, 3 Har. and McH., 430; Learned v. Riley, 96 Mass., 109; Odiorne v. Mason, 9. N. H., 24; Lynch v. Livingston, 8 Barb., 463. (Affirmed in 6 N. Y., 422.)

      A notary in Ohio is not disqualified by reason of his interest in the mortgagee company. Horton v. Building & Loan Soc., 8 Re., 169; 6 C. L. B., 141.
    It can not be denied that the last cited case is directly in point and decisive of the question here, if considered as an authority. It was decided in 1881, and has remained the law of the state to the present time, and no other reported case, so far as we are able to find in Ohio, has in any way questioned the correctness of this decision.
    In 2 Jones on the Law of Real Property, Sec. 1126, the author arrives at the conclusion that that is the general law of the land, and his conclusions as to the notary are that if there is nothing on the face of the deed to notify purchasers that the notary is an interested person, it will not affect the validity of the deed. Read, Assignee, v. Toledo Loan Co., 13-23 O. C. C. R., 25.
    In Ohio an acknowledgment regular in form can only be impeached for fraud. Lemmon, Assignee, v. Hutchins, 1 Circ. Dec., 217; 1 C. C. R., 388; Baldwin v. Snowden, 11 Ohio St., 203; Ford v. Osborne, 45 Ohio St., 1.
    We cite the above authorities for the purpose of showing the regard in which our courts hold certificates of acknowledgment purporting to have been made before an officer authorized to take and certify acknowledgments. These authorities hold that before an acknowledgment can be set aside, fraud in the taking and certifying the acknowledgment must be pleaded and proved. Nothing of that nature is attempted in this action.
    We respectfully submit that the provisions of section 4106 have already 'been construed liberally and so as to validate instruments executed in good faith.
      Moore v. Vance, 1 Ohio, 1; Kinsman v. Loomis, 11 Ohio, 475; Crumbaugh v. Kugler, 2 Ohio St., 374; Moore v. Moore, 3 Ohio St., 154; Doe v. Turner, 7 Ohio (pt. 2), 216; Horton v. Building & Loan Co., 8 Re., 169; 6 C. L. B., 141. See also act of legislature of 1900, authorizing attorneys to administer oaths of clients to pleadings and to certify thereto when authorized generally to administer oaths. 94 O. L., 33; Joyce v. Dauntz, 55 Ohio St., 538; The Mutual Aid Bldg. & L. Co. v. Gashe, 56 Ohio St., 273; Amick v. Woodworth, 58 Ohio St., 86; Straman v. Rechtine, 58 Ohio St., 443; Jones on Mort., Sec. 874 and a, b, c, p; 3 Pomeroy’s Eq. (2 ed.), Secs 1211-1213.
    The mortgage in question, being regular upon its face, cannot be attacked by showing that the officer who took the acknowledgment was interested in the transaction. Havemeyer v. Dahn, (S. C. Neb., 1896) 33 L. R. A., 332; Cooper v. Building & L. Assn., 97 Tenn., 285; Titus v. Johnson, 50 Tex., 224; Benson Bank v. Hove, 45 Minn., 40; Morrow v. Cole, 58 N. J. Eq., 203; Angier v. Schieffelin, 72 Pa. St., 106; Corey v. Moore, 86 Va., 721; Lawson v. Bank, 1 Ohio St., 206.
   Crew, J.

On the trial of this cause in the court of common pleas, at the request of the plaintiff, the court made and stated its finding of facts separate from its conclusions of law, and the facts so found and stated by said court of common pleas, are admitted to be correct, and they are not here in dispute. The sole controversy in this case arises upon the statement of facts contained in paragraphs four and five of its findings of fact so made by said court of common pleas. Said paragraphs are as follows:

“4. That prior to and upon February 19, 1896, said assignor, Cary D. Lindsay, was a member of said The Toledo Loan Co., and on said date subscribed for ten shares of the capital stock of said company; that thereupon, on the representation of said Cary D. Lindsay to said company, and upon agreement between said Cary D. Lindsay and said company, that said loan should become and be secured by a first lien upon said lots numbers 116 and 117 in Shaw’s Monroe Street Addition to Toledo, Ohio, said The Toledo Loan Co., on February 19, 1896, loaned and advanced to said Cary D. Lindsay, the sum of forty-eight hundred dollars ($4,800), of and from the moneys theretofore raised by said company for said purpose of loaning to its members, said Cary D. Lindsay agreeing to repay said loan with interest, in weekly installments, in accordance with the constitution and by-laws of said company; that in pursuance of said representations and agreement, and to secure the payment of said money so loaned, with interest, and simultaneously Avith the loaning thereof, said Cary D. Lindsay executed, acknowledged and delivered to said defendant, The Toledo Loan Co., his certain mortgage for said sum of $4,800 upon said lots numbers 116 and 117 in Shaw’s Monroe Street Addition, aforesaid.
“5. That said mortgage was executed by said Cary D. Lindsay in the presence of Eva M. Ely and Grant Williams, and was acknoAvledged by said Cary D. Lindsay before Grant Williams, a notary public within and for Lucas county, Ohio; that at the time of the execution and acknowledgment of said mortgage, said Cary D. Lindsay was a stockholder in said The Toledo Loan Co., and Eva M. Ely and Grant Williams were each owners of two shares of the stock of said company, and said Eva M. Ely and Grant Williams were not otherwise related to said The Toledo Loan Co., or in any wise employed by it; and said Cary D. Lindsay then knew that said witnesses and notary respectively, were stockholders • in said company.”

Upon the foregoing facts, it is claimed by plaintiff in error:

“First — That inasmuch as Eva M. Ely and Grant Williams were both stockholders of the defendant company, the mortgage given to it by Cary D. Lindsay was never witnessed.
“Second — That inasmuch as Grant Williams, the notary before whom said mortgage purports to have been acknowledged by Cary D. Lindsay, was a stockholder in said company, that said mortgage was never duly acknowledged.
“Third — That never having been acknowledged and never having been witnessed as to its signature, said mortgage was not entitled to record in Lucas county, and the recording of the same was a nullity.
“Fourth — That the plaintiff as assignee holds the legal title to said real estate free from all incumbrances or liens growing out of said mortgage.”

It will thus be seen that the question here presented is: Whether a mortgage made to a corporation as grantee, is invalid and of no effect by reason of the fact that the witnesses to such mortgage and the officer taking the acknowledgment thereof, are stockholders in said corporation. The requisites as to the manner and form of the execution of instruments for the conveyance or incumbrance of real property is matter of statutory regulation, and the statute providing for and governing the execution and acknowledgment of deeds, mortgages, etc., in this state, is Section 4106, Revised Statutes, which section, so far as it has relation to the present inquiry, and application to the question here involved, provides as follows:

“A * * * mortgage * * * of any estate or interest in real property shall be signed by the *' * * mortgagor * * * and such signing shall be acknowledged by the * * * mortgagor * * * in the'presence of two witnesses, who shall attest the signing and subscribe their names to the attestation, and such signing shall also be acknowledged by the * * * mortgagor * * * before a judge of a court of record in this state, or a clerk thereof, a county auditor, county surveyor, notary public, mayor or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto.”

It will be observed- that within the provisions of this section the only requirements are that the mortgage shall be signed by the mortgagor, that such signing shall be acknowledged by him in the presence of two witnesses who shall attest the same, and that such signing shall be acknowledged by the mortgagor before one of the several officers therein named, whose duty it shall be to make certificate thereon of said acknowledgment. But the qualifications of the witnesses so attesting,' and the officer so certifying, are not attempted to-be prescribed by said section, nor is there in said statute any provision or even suggestion that a witness or officer shall be disqualified or rendered incompetent as such, by reason of being interested in the conveyance so witnessed and certified. In the absence then of any express provision in the statute forbidding it, the precise question here presented is, whether a stockholder in a corporation, not otherwise interested therein, may be a witness to, and as notary public may take the acknowledgment of a mortgage executed by another to such corporation; and the proper determination of this inquiry involves, to some extent at least, a consideration both of the purpose of the legislation requiring the observance of these formalities in the execution of a mortgage, and also of the capacity in which a notary acts in taking and certifying the acknowledgment of the grantor, whether such act on his part is judicial or ministerial in character. At common law attestation was not necessary to the validity of a deed or mortgage and is not now necessary, except when required by statute. The purpose of the legislature in requiring that an instrument for the conveyánce or incumbrance of real property shall be witnessed by two witnesses doubtless was that there might be on record, in a matter so important as that of the conveyance or incumbrance of real property, the names of two persons who certify or attest the fact, that they saw the grantor sign the instrument or heard him acknowledge the same, and thereby to furnish an easy and effectual mode of proof of its execution, and thus provide an additional protection or security against the making of a fraudulent or forged conveyance or incumbrance. The certificate of acknowledgment by a notary public, or other authorized officer, is simply an additional solemnity in the execution of a deed or mortgage and is required by statute chiefly for the purpose of affording proof of the due execution of the instrument by the grantor, sufficient to authorize the recorder to make the same matter of public record. Section 4134, Revised Statutes. Jones on the Law of Real Property in Conveyanting, at section 1126, in discussing the subject of “acknowledgment” says: “The chief use of an acknowledgment, as already noticed, is to perfect the deed for record. The grantor can select such authorized officer before whom to acknowledge his deed as he chooses. He may refuse to make his acknowledgment before an interested officer. Having voluntarily acknowledged the deed, the grantor is presumed to have voluntarily consented to its record. ‘If his deed is found on record, apparently executed according to the forms of law, and without any circumstances of suspicion against it, the plainest principle of equity would hold him estopped from setting up an undisclosed interest of the officer before whom he made his acknowledgment, to defeat his conveyance, as against an innocent purchaser relying upon the record as the evidence of his title.’ * * * “An interest under a deed not apparent on its face does not disqualify an officer to take and certify an ordinary acknowledgment. Thus, if he is one of the beneficiaries in a deed of trust, he may take the grantor’s acknowledgment, when his interest under the deed does not appear on the face of it. The fact that he acted as the agent of the mortgagor in obtaining the money does not disqualify him to take the mortgagor’s acknowledgment.”

What is here said by the author would seem to apply equally as well to the witnesses attesting the signature of the grantor as to the officer taking his acknowledgment. In an early case in this state (that of Johnson v. Turner, 7 Ohio [pt. 2], 216) it was decided by this court that a witness to a trust deed, given to secure an indebtedness to a bank, who at the time of the execution of such deed was a stockholder in said bank, was not thereby disqualified to act as a subscribing witness to said deed, and that such deed was not thereby rendered invalid nor could it, on that ground, be impeached for want of sufficient attestation. The question there decided, arose and was presented on the following agreed statement of facts:

“Walter Turner was indebted to the Bank of Zanesville in the amount .stated in the trust deed under which the plaintiffs, claimed, and on the application of C. B. Goddard, Esq., the attorney for the bank, executed the deed which was prepared and signed by said Goddard, as one of the subscribing witnesses, he (Goddard) being a stockholder in the corporation.”

In the opinion in that case the court say:

“The first question for the consideration of the court is the objection to the trust deed, because, at the time of its execution, General Goddard, one of the subscribing witnesses, was a stockholder in the Bank of Zanesville. If this objection is sustainable,, the deed is invalid to pass the legal title of the lands intending to be conveyed to the trustee for the security of the bank, and ought not to be received in evidence in support of a legal title in the plaintiff’s lessors. * * *
“But is not this deed in conformity with the statute? This is admitted, in all respects, excepting that General Goddard was interested in the corporation for whose benefit it was made, when he subscribed it as a witness, and it was executed by Turner. '* * *
“In England,, the grantee must prepare the conveyance and present it to the grantor for execution. We know of no such rule here. The grantor prepares his own deed. He calls his witnesses; they are selected by himself. He must then acknowledge its execution, and not until thus acknowledged, does he part with its possession by a delivery to the grantee. Every act, therefore, is the act of the grantor while the deed remains in his possession, and the first act of the grantee is the acceptance when finally delivered to him. The grantor, then, should not, it appears to us, be permitted to object to a witness selected by himself, and in whose integrity he had reposed confidence, to bear witness to his own acts. But aside from this course of reasoning, is this deed invalid? The statute, Vol XXXI, 346, Sec. 1, requires the deed to be executed fin the presence of two witnesses, who shall attest such signing and sealing and subscribe their names to such attestation.’ Unless the express provisions of this- statute or its plain inference, lead to the conclusion that the witnesses to a deed must be credible and competent to prove its execution at the time of their attestation, and that such was the intention of the legislature, reluctantly indeed, Avould this court adopt such an opinion. If such be the law, it is time to look around us and ascertain by whom our deeds bear witness.”

As above stated, the court in this case held that the trust deed was sufficiently attested, was valid and could not be impeached by showing that Goddard, one of the attesting witnesses, was interested in the corporation. But it is here insisted, by counsel for plaintiff in error, that the doctrine of this case is modified and the authority of the case destroyed by the decision of this court in the later case of Amick v. Woodworth et al., 58 Ohio St., 86, where it is held by this court that the grantee in an instrument for the conveyance or incumbrance of real property is disqualified to be an attesting witness to its execution or to act in an official character in taking and certifying the acknowledgment of the grantor. In the case of Amick v. Woodworth, the instrument, the validity of which was in controversy, was acknowledged before, and was witnessed by, the person named therein as grantee, which fact readily distinguishes it from the case we are here considering. And that this distinction was not overlooked, but was clearly recognized by the court, affirmatively appears from the language of Williams, J., who prepared the opinion in that case, when he says : “It is probably unnecessary to notice that this question was not involved in Johnson v. Turner, 1 Ohio (pt. 2), 216, and that case is unaffected.”

The decision in Johnson v. Turner having been made by this court as early as the December term, 1836, and not having since been questioned or overruled by this court, has become a law of property in this state, and for that reason, if for no other, should now be followed and upheld. This decision in Johnson v. Turner must, therefore, be held to conclusively determine the question in this state that an instrument, conveying or incumbering real estate cannot be impeached and will not be held invalid on the sole ground that the witnesses to such instrument are interested to the extent of being stockholders in the corporation named therein as grantee.

This leaves then only the question: Is the mortgage here in controversy invalid, because the notary public before whom the same was acknowledged, was at the time of taking such acknowledgment, a stockholder in The Toledo Loan Co., grantee in skid mortgage? Counsel in this case upon both sides, as evidenced by their briefs, have been diligent in the collection and citation of authorities dealing with this question, and the cases cited show quite a conflict of authority and diversity of holding by the courts in the different states, upon this question. There would seem to be two lines of authorities upon this proposition, the one holding that the act of a notary in taking and certifying an acknowledgment is a judicial act, the other holding it to be ministerial only. In those states holding the former doctrine, the notary is held to be incompetent and the instrument, therefore, invalid. While in those states holding the latter doctrine, exactly the contrary decision is reached, and in most of the authorities cited by counsel the decision in each particular case seems to have turned upon or been controlled by the fact of whether the court rendering the decision regarded the act of the officer in taking the acknowledgment as judicial or ministerial in character. This distinction is noticed and discussed in the case of Bank v. Conway, 17 Fed. Cases, 1202. Judge Hughes, announcing the opinion of the U. S. District Court in that case, among other things, says:

“The question whether this writing was properly acknowledged or not, which was so ably and elaborately argued at bar, is only a secondary one in the case. The primary question is, when did this writing become a deed as between the grantor and grantee? The acknowledgment of the writing by the grantor had reference only to its being recorded, and thereby made valid as against his creditors. If the question were only as to acknowledgment, I should decide, without hesitation, that it was properly acknowledged ; for the teaching of the cases cited at bar seems to me plainly to be, that an interested person may take the acknowledgment of a deed when the act is merely ministerial; although if the act be judicial, such as taking the acknowledgment, after privy examination, of a married woman, an interested person cannot take it. Harkins v. Forsyth, 11 Leigh, 294; Carper v. McDowell, 5 Gratt., 212; Horsley v. Garth, 2 Gratt., 471; Taliaferro v. Pryor, 12 Gratt., 277; Johnston v. Slater, 11 Gratt., 321; Turner v. Stip, 1 Wash., 319; Hampton v. Stevens, 10 Am. L. Reg., 107 (1971); Boswell v. Flockheart, 8 Leigh, 364; Dimes v. Grand Junction Canal Co., 16 Eng. Law & Eq., 63.

This case was taken on appeal to the United States Circuit Court, and in that court Chief Justice Waite, announcing the opinion, said:

“A deed may be acknowledged by the grantor before a notary public, and upon the certificate of the notary to that effect in proper form, recorded. The form of the certificate in this case is correct, but it is insisted that because Garnett, the notary, was interested as one of the beneficiaries in the trust, he was incompetent in law to receive and certify the acknowledgment. This presents the principal question in the case for our consideration.
“It has been frequently decided that an acknowledgment before a grantee named in a deed was of no effect. Beaman v. Whitney, 20 Me., 413; Wilson v. Traer, 20 Ia., 232; Stevens v. Hampton, Mo., 404; Groesbeck v. Seeley, 13 Mich., 329. It has also been held that a party interested in a deed cannot take and certify the acknowledgment of a married woman requiring a privy examination. Withers v. Baird, 7 Watts, 228. The taking of such an acknowledgment is, in some respects, a judicial act, and not ministerial only, but in the case of an ordinary acknowledgment it is purely a ministerial act. Truman v. Lore, 14 Ohio St., 151; Lynch v. Livingston, 2 Seld., 434. Upon this principle it was decided in Dussaume v. Burnett, 5 Ia., 95, that an acknowledgment before one not a grantee named in the deed, but interested in the conveyance, was good. The same distinction was recognized in Stevens v. Hampton, before cited.” * * *

And further in the same opinion it is said: “A certificate of acknowledgment is required to perfect a deed for record. The grantor can select such authorized officer for that purpose as he chooses. He has full power to protect himself against frauds by interested parties as certifying officers, for he may refuse to make his acknowledgment before them.” And in this case it was held that the notary taking the acknowledgment was not disqualified, and that the deed was valid.

It has been twice held by the Supreme Court of this state that in Ohio the officer does not exercise judicial functions in taking an acknowledgment, and that his act, though official, is purely ministerial. Truman v. Lore et al., 14 Ohio St., 151; Williamson v. Carskadden, 36 Ohio St., 664. And that the legislature in the enactment of the present statute so regarded it, is, we think, clearly indicated by the fact that the power to take acknowledgments is not limited by the statute to judicial officers alone, such as the judge of a court of record, mayor, or justice of the peace, but is conferred as well upon county auditors, county surveyors,- and notaries public. It would seem that in those instances where the legislature intended to disqualify, or limit the authority of a notary public to act in his official capacity, it has done so by express and positive statutory provision, for instance by Section 111, Revised Statutes, it is provided: “No banker, broker, cashier, director, teller, or clerk of any bank, banker, or broker or other person holding any official relation to any bank, banker, or. broker, shall be competent to act as notary public in any matter to which said bank, banker, or broker is in any way interested.”

By Section 5269, Revised Statutes, a notary public is one of the officers authorized to take depositions, but it is provided by section 5271 that such notary must not be a relative or attorney of either party or otherwise interested in the event of the action or proceeding in which the deposition is taken. If, therefore, it had been the policy and purpose of the legislature to prohibit a stockholder of a corporation from acting as notáry public in the taking and certifying of an acknowledgment to an instrument in which such corporation was interested, it would doubtless have so provided in section 4106, and in the absence of any statutory inhibition the disqualification of the notary to act will not be presumed.

In the case at bar it is admitted that Cary D. Lindsay, the assignor, at the time he acknowledged this mortgage, knew of the relation the notary, Grant Williams, sustained to The Toledo Loan Co., and knew that he was then the holder of two shares of stock in said company, and there is in this case no imputation or charge of improper conduct or had faith or undue advantage arising out of such interest or relationship, nor is there any claim but that the acknowledgment was freely and fairly made in the honest belief that it was in all respects authorized and sufficient. To hold then, under such circumstances, that the mortgage here in controversy was invalid, unless impelled thereto by statutory requirement or the plainest considerations of public policy, would, it seems to us, be a subversion of justice and would be contrary to tbe plainest principles of equity and fair dealing. In affirming tbe judgment of tbe court of common pleas in this case tbe circuit court was right, and its judgment is

Affirmed.

Burket, C. J., Spear, Davis, Shauck and Price, JJ., concur.