author: Williams, J.

text:
    Amick v. Woodworth et al.

      Grantee or mortagee cannot be witness to or take acknowledgment of realty conveyance — Must be two witnesses — An interested party paying off prior lien is subrogated to rights of prior lienor, when.

    1. A grantee in an instrument for the conveyance or incumbrance of real property is disqualified, on grounds of public policy, to be an attesting witness to its execution, or to act in an official character in taking and certifying the acknowledgment of the grantor.
    2. A mortgage with but one attesting witness beside the mortgagee, or the acknowledgment of which was taken by him as a notary public, is not entitled to record, nor valid, though admitted to record, as against a subsequent properly executed and recorded mortgage.
    3. As a general rule, one having an interest in or lien on property, who pays off for his protection a prior incumbrance upon it, is entitled in equity to be subrogated to all the rights of the prior incumbrancer, and to enforce the security for his reimbursement out of the incumbered estate. This equitable right, however, will not prevail against intervening bona fide purchasers without notice, or those occupying a like position ; nor does it belong to a mere stranger or volunteer who pays the incumbrance.
    4. Where a loan of money is made on an agreement with the borrower that it is to be secured by a mortgage which shall be the first lien on property then incumbered with other liens that are to be paid off out of the money loaned, and they are so paid in order to give the lender the promised security, the latter is neither a stranger nor volunteer, but sustains such relation to the premises and the parties as will entitle him, if his mortgage prove defective, to subrogation to the rights of those whose liens were so paid.
    5. Such person becomes in equity the assignee of the incumbrances paid out of his money, and they will be kept alive, and may be enforced by him, so far as is necessary to reimburse him for the payment so made, as against subsequent mortgagees and judgment creditors with notice of his equity, though the prior liens were released of record, and so appeared when the later liens were acquired.
    .6. The remedy of subrogation in such case is not in conflict with our recording statute which gives effect to mortgages from the time they are filed for record.
    (Decided March 1, 1898.)

      Error to the Circuit Court of Hamilton county.
    This is a proceeding in error to reverse a judgment of the circuit court directing the distribution of a fund arising from the sale of the homestead property of Mary A. Woodworth, on Price Hill in Cincinnati. The controversy here is between Marion L. Amick and William R. Amick on one side, and Albert Hughes on the other, concerning the priority of their respective claims to the fund; it being insufficient to satisfy all of them.
    The original action was brought by Marion L. Amick, in the Superior Court of Cincinnati, against Mary A. Woodworth and others, to bring the property to sale and marshal the liens. The petition sets up two judgments recovered by the plaintiff against Mrs. Woodworth, upon which executions were issued, and levied on the property in question ; and also a mortgage on the property made by Mrs. Woodworth and her husband to the plaintiff and William R. Amick jointly. By an amended and supplemental petition, a judgment recovered by the Amicks jointly on one of the mortgage notes is set up, with allegations of the levy of an execution issued thereon on the same property.
    Albert Hughes became a party, and filed an answer and cross-petition containing averments of the ownership of a mortgage on the property for $12,500, prior in time to the mortgage and judgments of the Amicks, and claimed by him to be the first lien. The validity of this mortgage is disputed by the Amicks on the ground that it was not legally attested or acknowledged.
    In the circuit court, to which the cause was appealed, an order was entered by consent for the sale of the property, under which it was sold, and the proceeds brought in for distribution; and on the distribution, that court made a finding of the facts, upon which it ordered the fund, after the payment of the costs and two small claims, to be paid to Hughes. This was insufficient to satisfy his claim, and consequently, there was nothingleft for the Amicks.
    It appears from the finding of facts, that Mrs. Woodworth and her husband applied to Augustus S. Ludlow, an attorney in Cincinnati, to procure a loan of $12,500 for them, offering as security therefor a first mortgage on the property in question. Ludlow, with a view of obtaining the loan, entered into negotiations with Hughes, and some other persons, and having become satisfied that it could be obtained, prepared in due form, notes and a mortgage to himself on the property, and forwarded the same to the husband of Mrs. Wood-worth who was then in the state of Mississippi, where they were duly executed by him, and returned to Cincinnati for execution by Mrs. Wood worth, where she then was. She accordingly signed the notes and mortgage; but the latter was witnessed by Ludlow, who at the same time took and certified her acknowledgment of the execution of the mortgage; Ludlow then being a notary public of Hamilton county. There was but one other witness to her execution of the mortgage, and in this form it was recorded on the 10th day of November, 1890. The money, to secure which the mortgage was given, was in fact loaned by Hughes, through Ludlow who had no interest in the transaction further than his commission for the loan; and the notes and mortgage were duly transferred by Ludlow to Hughes, who understood he was thereby obtaining the first lien on the property.

      The facts further show that when the loan was applied for, and when it was made, the Woodworths “agreed that the unpaid taxes and the mortgages then on said premises should be first paid out of the said $12,500.00, so as to make said $12,500.00 mortgage the first lien on said premises; and, that said $12,500.00 mortgage would be the first and only lien on said premises; and in after-wards giving said mortgage to said Ludlow, said Woodworths intended to give a first and valid mortgage lien on said premises. That in furtherance of said agreement, the said Augustus S. Ludlow paid out of said $12,500.00, in payment of valid liens on said premises, as follows:

      First — The taxes then a lien on said premises, $362.54.

      Second — Mortgage from Mary A. Woodworth and husband, to The Big Four Building & Saving Company, recorded in Mortgage Book 550, page 238, in the Recorder’s office of Hamilton county, Ohio, the sum of $7,012.15.

      Third — Mortgage from Mary A. Woodworth and husband to Fifth Ward Building Association, recorded in Mortgage Book 554, page 395, of the Records of said county, the sum of $2,486.93.
    The court further find that on the 23d day of March, 1892, said Mary A. Woodworth reacknowledged said mortgage (to Ludlow) before a notary public in and for said Hamilton county, Ohio, which notary then duly certified such acknowledgment, and C. J. McDairmaid and Annie Moore Woodworth signed as attesting witnesses to such reaeknowledgment.
    Said mortgage was then re-recorded on the 24th day of March, A. D. 1892, at 9:50 o’clock A. M., in Mortgage Book No. 638, page 271, Hamilton county, Ohio, Records.”
    It also appears that in February, 1891, the Amicks sold to the Woodworths certain shares of stock in an incorporated lumber company, and other property, in Mississippi, for six thousand dollars, one-half of which was to be paid in one year, and the other half in two years ; and by the terms of the agreement, which was in writing, the last maturing note given for that indebtedness was to be secured by a mortgage on the Woodworth homestead property on Price Hill, being the property from the sale of which the fund in dispute was produced. This agreement contains the following clause: “it being understood, however, that there is already a prior mortgage lien upon said Price Hill property to secure the payment of twelve thousand five hundred dollars.”
    And in pursuance of this agreement, the mortgage under which the Amicks make claim to the fund was executed ; the covenants in which are as follows: “And the said Mary A. Woodworth and T. H. Woodworth, her husband, for themselves and for their heirs, executors, and administrators, do hereby covenant with the said Marion L. Amick and William R. Amick, their heirs and assigns, that they are the true and lawful owners of the said premises, and have full power to convey the same, and that the title so conveyed is clear, free, and unincumbered; and further, that they will warrant and defend the same against all claim or claims of all persons whomsoever, except a prior $12,500.00 mortgage. ’ ’
    The fourth paragraph of the finding of facts is as follows:

      11 Fourth — That on said February 21,1891, at the time of taking the above described mortgage, said Marion L. Amick and William R. Amick knew that when said loan of $12,500.00 was made to Mary A. Woodworth that it was made with the express agreement between said Mary A. Woodworth and Augustus S. Ludlow, as such attorney, that out of the said $12,500.00 should be paid said taxes then a lien on said premises, amounting to $362.54, and the said following building association liens, then liens on said premises ; mortgage from Mary A. Woodworth and husband to The Big Four Building and Saving Company, recorded in Mortgage Book 550, page 238, in the Recorder’s office of Hamilton county, Ohio, and then unpaid thereon $7,012.15; and mortgage from Mary A. Woodworth and husband- to Fifth Ward Building Association, recorded in Mortgage Book 554, page 395, of the records of said county, amount then unpaid thereon $2,486.63. They further knew that such money had been so applied to the extent necessary to pay the same.” To which finding the Amicks excepted, “because it is not sustained by any evidence. ’ ’
    In its conclusions of law the court held “that where money has been loaned on a defective mortgage for the purpose of discharging a prior valid incumbrance, and has actually been so applied, the mortgagee may be subrogated to the rights of the prior incumbrancer, whom he has thus satisfied, there being no intervening incumbrances, for value without notice.” And that: “Therefore said Albert Hughes may be granted leave to amend his answer and cross-petition so as to conform to the facts herein-above found as to the fact that said Hughes’ loan was made with the express agreement that the money should be used in payment of said prior valid incumbrances to the extent necessary, that it was so used, and that said Marion L. Amick and Wm. R. Amick knew the same, and may pray for subrogation.” Hughes at once filed an amended answer and cross-petition alleging the facts as found by the court; and it was thereupon adjudged that “Hughes is in law entitled, as against all the liens of said Ann E. Moore, Marion L. Amick, and William R. Amick, to be subrogated to the rights of said liens, amounting to $9,861.12, so as aforesaid paid out of said $12,500.00 loan.” And it was accordingly ordered that the costs, and the two small claims which were admitted to have priority, be first paid out of the fund, and that the balance, amounting to $6,769.00 be paid to Hughes to be credited on the amount to which the court found him entitled. The Amicks excepted to this order, and to the conclusions of law as above stated. Other facts were found by the court; but in the view we have taken of the case, it is not deemed necessary to state them here. A bill of exceptions was also taken, which purports to set out the evidence given on the trial; which, so far as it may be important to do so, will be noticed in the opinion.
    Brief of Franklin T Cahill, for Marion L. Amick, plaintiff in error.
    We contend, first, that the Ludlow mortgage was absolutely null and void as of its first recording, and has no validity whatever as a lien upon the property, as against the liens of the Amicks, except from the date of the second recording.

      Since February 22, 1831, by virtue of the Statute, it has been the law in Ohio that a recorded mortgage defectively executed is void as to junior mortgages, even with notice, and as to judgments rendered after the recording’ of the defective mortgage. Swan’s Statutes of Ohio, 265, 647; Revised Statutes of Ohio, section 4133, etc.; Stan-well v. Roberts, 13 Ohio, 148; Mayland v. Combs, 14 Ohio, 428; Whiter. Denman, 16 Ohio, 60; Fosdick v. Barr, 3 Ohio St., 470; Holliday v. Franklin, 16 Ohio, 533 ; White v. Denman, 1 Ohio St., 110 ; Bloom v. Hoggle, 4 Ohio St., 45; Van Thornby v. Peters, 26 Ohio St., 471; Barry v. Harvey, 30 Ohio St., 344; Riley v. Rice, 40 Ohio St., 441.
    A notary can not take the acknowledgment of a mortgage to himself. He can not officiate where he has either a legal or beneficial interest. Upon this question the authorities are unanimous and very numerous. Withers v. Band, 7 Watts, (Pa.) 227; Beaman v. Whitney, 20 Maine, 413; Groesbeok v. Seeley, 13 Mich., 329; Wilson v. Travers & Co., 20 la., 231; Stevens v. Hampton, 46 Mo., 404 ; Hammers v. Dole, 61 111., 307 ; Dail v. Moore, 51 Mo., 589; Wasen v. Conner, 54 Miss., 352; West v. Krehaum, 85 111., 263 ; Davis v. Beazley, 75 Va., 491; Jones v. Porter, 59 Miss., 629; Hogans v. Carruth, 18Fla., 587 ; Green v. Abraham, 43 Ark., 420; Broxone v. Moore, 38 Tex., 645; Boxoden v. Pax^rish, 86 Va., 67.
    Nor can the mortgagee act as an attesting witness. The mortgage is void because there is only one legal, competent witness, the mortgagee not being a competent witness. Townsend v. Downer, 27 Va., 119; Winstead Savings Bank v. Spencer, 26 Conn., 195; Corbett v. Nor cross, 35 N. H., 99; Cooley v. Garter, 23 Ala., 612.

      And we contend that, the Ludlow mortgage is not entitled to subrogation. We believe the law to be as laid down in Sheldon on Subrogation, section 8. Eversion v. Kansas Bank, 33 Kansas, 352; Kitchell v. Midget, 37 Mich., 82.
    Brief of William E. Jones, for Albert Hughes, defendant in error.
    The mortgage executed to A. S. Ludlow was executed strictly in accordance with the statutes of Ohio. So far as any of the counsel in this case have been able to find, there is no case reported in Ohio which has held invalid such an execution of a deed or mortgage. The law seems to be well settled that an acknowledgment can not be taken by a party in interest. Wilson v. Trea/r, 20 la., 231; Stevensv. Tlam/pton, 46 Mo., 404; Brotan v. Moore, 38 Texas, 645.
    It is taken for granted by counsel for Hughes that if Ludlow was competent to act as a notary he was also competent to act as a witness.
    Only upon the conditions expressed in the agreement and mortgage can the Amicks enforce their contract, and in doing so they can not repudiate the conditions upon which alone they received the mortgage. Their contract was that they would receive and accept “a first mortgage” on the Sixth Street lot to secure the first note, and for the second note a mortgage on the Price Hill lot, “it being understood, however, that there is already a prior mortgage lien upon said Price Hill property to secure the payment of twelve thousand five hundred dollars. ” Hotaardv. Chase, 104 Mass., 249; Coe v. The Columbus, P.dsI.R. Co., 10 Ohio St., 406.

      In the case of Higginson s. Weld, 14 Gray, 165, the court say: “ £It is understood,’ in the ordinary use of that phrase when it is adopted in a written contract, has the same force with ‘itis agreed. ’ ’ ’
    This interpretation is given by Abbott in his dictionary, by Winfield, in Adjudged Words and Phrases, and by Lawson’s Concordance. Barkow v. Sanger, 47 Wis., 507; Winslow v. Dakota Lumber Co., 32 Minn., 237.
    Under the contracts of February 2, 1892, be: tween the Woodworths and the Amicks, it is important that the Hughes mortgage shall be held according to their agreement as the first lien. It is important to a very great degree that the Amicks should agree to that. They did agree to it, accepted their mortgage in accordance with the agreement.
    It was then and now is possible for them to agree that any subsequent or a prior defective lien should be held valid. If they have so agreed, in the absence of fraud or deceit, they are bound by the agreement, although they knew that the lien was defective.
    Biglow on Estoppel, 364; Hermann on Estoppel, section 613; Libbey v. Pierce, 47 N. H., 309; St. John v. Roberts, 31 N.Y., 441; Blackburns. Hall. 91 111., 434.
    After the judgment was confessed the Amicks began this proceeding, asking a court of equity to declare their liens, mortgage and judgment, prior to the lien of the Hughes mortgage on the Price Hill real estate.
    These demands are in violation of both the spirit and letter of their agreements, and will be refused. Hubbard v. Eastman, 7 N. H., 507; 2 Freeman on Judgments, 492; Jones on Mortgages, 71, supra) Kennion v. Kelly, 10 la., 443; Muzzey v. Knight, 8 Kas., 456; Briggs v. Laxo, 4 Johns Ch., 22; Johnson v. Unversam, 30 Ind., 435; McIntosh v. Commissioners, 13 Kas., 456.
    If these agreements stand as they were made, and the court will not vary them unless they are illegal, the Hughes mortgage will be paid in part and the Amicks must cancel their liens of record, although they receive nothing. Pidgeon v. Trustees of School, 44 111., 401; Forgy v. Munnian, 14 Neb., 513; Birkev. Abbottt, 103 Ind., 1.
    It is contended, however, that the later decisions where the Ohio Statutes have been under consideration support the Hughes mortgage. The Central Fust Co. of New York v. The Toledo, C. c& /St. L. B. B. Co., U. S. Circuit Court, No. 3554. Biley v. Bice, 40 Ohio St., 441.
    Very similar to the present case is that of Howard v. Chase, 104 Mass., 249. Bigelow on Estoppel, 355 and 360 (4th Ed.); Pomeroy Eq. Jur., 1205; Herman on Estoppel, section 606; 2 Story Eq. ;341, note, (13th Ed.); Jones on Mortgages, 744, Lawrence v. Fox, 20 N. Y., 268; Fctrnan v. Avid, 44 N. Y.,50; Greitherv. Alexander, 15 la., 470; Johnson v. Thompson, 129 Mass., 398.
    After the evidence was all in, the circuit court directed the defendant, Albert Hughes, to amend his answer and cross-petition so as to allege and claim subrogation. This was evidently done so as to have the pleadings conform to the facts proved. No additional evidence was offered after the amendment. Tradesman’s B. Ass^nv. Thompson, 32 N. J. Eq., 133; Becker v. Walworth, 45 Ohio St., 175.
    Courts of equity are perhaps as frequently called upon, and as uniformly to grant relief resulting from mistakes, as upon any other ground within their jurisdiction. It is one of the fundamental grounds of its jurisdiction. Gobb v. Dyer, 69 Me., 494; Ohaffee v. Oliver, 39 Ark., 531; Patterson v. Birdsall, 64 N. Y., 295.
    The case of Sears v. Patterson, 54 Mo. App., 278, is nearly like the present case. 24 Am. & Eng. Eney. of Law, 270; Jones on Mortgages, section 874; Tyrrell v. Ward, 102 111., 29; Moore v. Season, 44 N. H., 215 ; Peltz v. Clarke, 5 Peters, 481; Ebert v. Gerding, 116111., 271; Paines. Hathaway, 3 Vt., 212.
    Reply brief of Franklin T Cahill, for plaintiff in error.
    The Ludlow mortgage is valid only as of the date of the second recording. The interest that bars a notary from taking the acknowledgment to a mortgage is the legal or the beneficial interest. If the mortgage be to him, or if he be the beneficiary named in it, he can not officiate as notary to take the acknowledgment of the grantor.
    The second mortgagee is not estopped from denying the validity of a prior mortgage, although the covenant against incumbrances in his mortgage contains a clause excepting such prior mortgage. Calkins v. Copley, 29 Minn., 471; Bennett v. Kahn, 67 Wis., 154; Esterbrooh v. Smith, 72 Mass., 572; 29 Minn., 471; 25 Mich., '393; Riley v. Rice, 40 Ohio St., 441; Twitchell v. Drv/ry, 25 Mich., 393; Reed v. Syeke, 27 Ohio St., 285; Thompson, Adnvr., v. Thompson, 4 Ohio St., 333; Weber v. Ziemet, 30 Wis., 283; Freedmans. Auld, 44 N. Y., 50; Jones on Mortgages, sections 740, 744, 746, 749, 751, 757.
    The Amicks were convinced that the Ludlow mortgage was not a valid lien, and henee the concessions they made in the contract of February 2, 1892. Upon any other theory the contract is suicidal for them.
    It was claimed by the other side that this contract also in some way worked an estoppel. It may be put thus :
    Query' — Mrs. Woodworth having on February 27, 1891, given the Amicks a mortgage upon the Price Hill real estate for $3,000.00, at which time both the Woodworths and the Amicks supposed there to be a prior valid mortgage upon the premises, can. the Amicks a year later, having discovered by diligence that such supposed prior mortgage was probably void, deal with Mrs. Woodworth as to the same subject-matter without revealing’ to her the fruits of their diligence? Harris v. Tyson, 24 Pa. St., 347; Fox v. Maohreth, 2 Brown’s Chancery Rep., 420; Laidloio v. Organ, 2 Wheat., 178; Young v. Bumpus, 1 Freeman Oh. Miss., 241; 1 Storey’s Eq. Jur. Oh., Section 148.

      J. F. Balckoin submitted a brief for Woodworth» defendant in error.
   Williams, J.

The questions arising in the settlement of the controversy between these parties» are: (1.) Is the mortgage madeby the Woodworths to Ludlow, and by him assigned to Hughes, valid as against the subsequent liens of the Amicks? And if not: (2.) Is Hughes entitled for his protection to enforce the prior liens which were on the property when he obtained his mortgage, and to the payment of which the money loaned by him was applied under agreement with the Woodworths ?

1. The execution, by Mrs. Woodworth, of the mortgage made to Ludlow, was attested by the latter, and by but one other witness ; and her acknowledgment of its execution was also taken and certified by the mortgagee, acting as a notary public. The mortgage so attested and acknowledged was recorded before the Amicks acquired any of their liens on the property. It is contended in behalf of Hughes, that there being nothing on the face of the Ludlow mortgage, other than the identity of name, to indicate that the mortgag’ee was the same person who witnessed its execution, and, as an officer, certified the acknowledgment, it was properly admitted to record, and appeared thereon to have been executed, attested and acknowledged in due form of law when the Amicks obtained their liens, and consequently, is superior to them. Under our statute mortgages of real property executed agreeably to its provisions are entitled to record, and take effect as against subsequent liens from the time they are delivered to the recorder of the proper county for that purpose. Revised Statutes, section 4133. And it is essential to the proper execution of such instruments that they be signed by the mortgagor in the presence of two witnesses who shall attest the signing and subscribe their names to the attestation, and that such signing shall also be acknowledged by the mortgagor before an officer having authority to take the acknowledgment, who is required to certify the same and subscribe his name thereto.

The statute does not in express terms forbid a grantee in an instrument for the conveyance or incumbrance of real property to take and certify the g'rantor’s acknowledgment, nor disqualify him as a witness to its execution, nor declare an instrument so attested and acknowledged to be void. Nor, does the effect of such attestation or acknowledgment on the validity of the instrument appear to have been considered in any reported decision of this court. It is generally held, however, in other states, under statutes similar to ours, that deeds and mortgages so attested and acknowledged are not entitled to record; and, if recorded, are inoperative as constructive notice to persons who subsequently acquire an interest in or lien on the property. The reason given in some of the cases is, that taking an acknowledgment of such an instrument is a judicial, or quasi judicial act, and comes within the rule that one cannot be a judge in his own case. This reason would not apply to the attestation by the grantee. The true reason of the disqualification we apprehend is, that to permit a grantee to attest as a witness the execution of an instrument made to himself, or take its acknowledgment as an officer, where its attestation and acknowledgment are necessary to give it validity, would be against public policy, and practically defeat the real purpose of the law, which is to prevent the perpetration of frauds on the grantors, and afford reasonable assurance to those who deal with or on the faith of such instruments that they are genuine and represent bona fide transactions.

In this particular instance Mr. Ludlow appears to have acted in good faith, and under an honest belief that his acts would be legal because he was but the nominal mortgagee, having no substantial interest, or but a very small one in the mortgage, the real party beneficially interested being Mr. Hughes. The mortgage is nevertheless invalid. The rule of disqualification must be of general application, and not made to depend upon the result of inquiry into the motives of the parties; for such a modification of the rule would necessarily open the door to the mischiefs it was designed to prevent. It is probably unnecessary to notice that this question was not involved in Johnson v. Turner, 7 Ohio, 216, and that case is unaffected.

2. The second execution and acknowledgment by Mrs. Woodworth of the Ludlow mortgage, and its record in that form, were subsequent to the record of the Amicks mortgage and the recovery of their judgments. This, it is claimed, gives them priority of right to the fund in controversy. On the other hand, it is contended in behalf of Hughes that the mortgage to the Amicks is, in effect, made subject to his ; or if not, then, though his mortgage is subordinate to the Amick liens, he is nevertheless entitled to the fund by subrogation to the rights of the prior incumbrancers, to the payment of whose liens the money loaned by him to the Woodworths was applied in pursuance of an agreement with them that his mortgage should be the first lien on the premises.

As the first of these contentions relates only to the conflict between the mortgages, its consideration will become unnecessary if the last is sustained;'for that will dispose of the whole fund. It appears from the record that when Hughes, through Ludlow, made the loan to the Woodworths, to secure which they gave to Ludlow the mortgage in question, there were subsisting incumbrances on the premises to the amount of $9,861; that to procure the loan the Woodworths agreed the mortgage should be the first lien on the property, and in order to make it so, that the money loaned should be applied, as far as was necessary, to the payment of the prior incumbrances ; and, that in pursuance of this agreement the money was so applied and the mortgage executed; the parties believing- and intending it to be the first lien. It failed to become such only through its defective attestation and acknowledgment; and in consequence, the Amicks’ liens, at law, obtained priority over it. Under these circumstances neither Ludlow nor Hughes can be regarded as a mere volunteer in paying off the prior liens, or in the application of the money loaned to their payment. It is a well settled general rule that one who having an interest in or lien on property pays off, for his protection, a prior incumbrance on the property, is entitled in equity to be subrogated to all the rights of the prior incumbrancer, and enforce the security to indemnify himself for such payment out of the incumbered estate. The rule is applicable where a loan of money is obtained by the owner of the property under an agreement that it is to be secured by a mortgage that shall be the first lien, and the money is applied, in whole or in part, to the payment of an existing incumbrance to enable him to furnish the promised security. If, in such case the mortgage prove defective, the mortgagee has such an interest as will entitle him to call to his aid the doctrine of subrogation. This doctrine says Pomeroy, in his work on Equity Jurisprudence, section 1212, “is justly extended to one who, having no previous interest, and being under no obligation pays off a mortgage, or advances money for its payment, at the instance of the debtor party and for his benefit. Such a person is in no true sense a mere stranger and volunteer.” In a note to that section, where the authorities are collected, it is said: “The doctrine is also extended to a person who had no subsequent interest in the premises, and was therefore under no obligation or personal necessity of paying the debt, but who at the instance of the debtor pays off the mortgage for his benefit, or advances the money for its payment, under an agreement that he shall have security for his payment or advances. ’ ’ To the authorities there cited, the following may be added in support of the rule as above stated. Bank v. Bierstadt, 168 Ill., 618; 48 N. E. Rep., 161; George v. Butler, 50 Pac. Rep., 1032. If Ludlow had first taken the mortgage under his agreement with the Woodworths, and then, out of the money loaned paid the previous incumbrances in order to secure the first lien, and thus protect himself against them, there could be no doubt, we think, under the authorities, that he would have had such interest in the premises as would enable him to invoke the remedy of subrogation ; and the fact that they were paid before, or contemporaneously with the execution of his mortgage, does not change, in substance, his relation to the premises, or the parties. See Young v. Morgan, 89 Ill., 200; Patterson v. Burdrall, 64 N.Y., 295, 299; Building Associations v. Thompson, 32 N. J. Eq., 133.

But the remedy is never allowed against an intervening bona fide purchaser without notice of the equity, nor one who occupies a like position* And that protection is claimed here for the Amicks. The trial court found, however, that when they obtained their mortgage, and recovered their judgments against Mrs. Woodworth, they had notice, not only of the actual application of the money loaned by Hughes to the payment of the incumbrances then on the property, but also of the agreement between the Woodworths and Ludlow for their payment out of thé money loaned in order that the mortgage for its security should be the first lien on the premises. That was sufficient notice of Hughes’ complete equitable right of subrogation. But it is insisted that the finding is without evidence to sustain it. An examination of the evidence has satisfied us that while there appears to have been no testimony of direct communication of the facts as found to the Amicks, there were circumstances tending to prove their knowledge of them. Notice may be satisfactorily established by inference from circumstances proven, and not infrequently that is the only character of proof attainable. And though we should differ with the trial court with respect to the probative force of the evidence on this point, the fact that different conclusions may be drawn from it by different persons only serves to show that a consideration of its weight is involved in an inquiry into the finding. In view of this finding it is unimportant that the incumbrances paid out of the money loaned by Hughes were discharged or cancelled on the record, and so appeared when the Amicks acquired their liens. Hughes became in equity the assignee of the incumbrances, and entitled to keep them alive for his reimbursement as against a subsequent incumbrancer with notice of his equity. This equitable result follows, although no actual assignment, written or verbal, accompanies the payment, and'the securities themselves were not delivered over to the person making the payment, and even though the debt be receipted as having been fully paid, and the incumbrance so paid was actually discharged and cancelled of record. Pomeroy’s Eq., sec. 1212.

The rule established by the current of authority is, that when a prior incumbrance is discharged of record, the release not showing- by whom it was paid, a purchaser or subsequent incumbrancer who has no other notice than that afforded by the record may, with safety, assume that the payment was made by the debtor; and he is not put on inquiry to ascertain whether it was paid by a third person under circumstances entitling the latter to subrogation. But when the purchaser or subsequent incumbrancer has notice that the payment was made by one having a lien on, or interest in the property, or under other circumstances which give him a right in equity to subrogation, that right will not be defeated nor affected by the fact that the incumbrance paid by him thereafter appears of record to have been cancelled. He will, notwithstanding, as against such subsequent pur-' chaser or incumbrancer, be entitled as the equitable assignee of the previous incumbrance so paid by him to enforce the same for his reimbursement. Ahren v. Foreman, 46 Minn., 156; Richards v. Griffith, 116 Ill., 216; Tyrall v. Ward, 102 Ill., 29; Robinson v. Lewitt, 7 N. H., 73, 99-100; Persons v. Shaeffer, 65 Cal., 79; Patterson v. Burdrall, 64 N. Y., 295-299; Bank v. Bierstadt, supra.

Nor does the enforcement of the remedy in behalf of Hughes in this case conflict with our recording statute which gives effect to mortgages from the time they are filed for record. His right of subrogation does not grow out of, nor depend upon the mortgage made to Ludlow. In administering the remedy, no effect is given to it. On account of its defective execution it remains invalid and subordinate to the Amick liens. His equity arises entirely from the payment of the prior incumbrances. The defect in the Ludlow mortgage simply created the necessity for resort to the remedy of subrogation in order that he should have reimbursement for the payments so made. He might at the time of payment have taken an assigmment of the incumbrances, and in that event his rig’ht to enforce them as liens superior to those of the Amicks could not be questioned. Equity dispenses with the formality of an assignment in such cases, and treats the securities as assigned to him for his protection, because it is manifestly just that he should have the benefit of them. It would be far from just that the Amicks should have the advantage of the payments made by Hughes, and thus in effect appropriate his money through the mere mistake or inadvertence of the parties resulting in the invalidity of the mortgage by which they intended that he should, and believed he would acquire the first lien on the premises. It seems clear, therefore, that upon the facts found by the circuit court, the right of Hughes to the fund in controversy is superior to the claims asserted by the Amicks against it, and there was no error in awarding it to him. This conclusion renders it unnecessary to consider the question whether the mortgage made to the Amicks was, by reason of the exception in the covenants, and the agreement under which it was made, subject to the Ludlow mortgage.

The objection made to the action of the court in granting Hughes leave to amend his pleadings to conform to the facts proved, and then proceeding to render judgment, is without force. The power to allow such amendments is expressly conferred by the code; and when Hughes filed his amendment the Amicks immediately replied, and no continuance, or opportunity to offer further evidence, was requested by them.

Judgment affirmed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Clark v. The Board of County Commissioners of Lucas County.

      Fees to public officers — Must be authorized by statute — Compensation to clerks of courts for indexing decrees, etc. — Sections 1255, 1256 and 1263, Revised Statutes.

    1. To warrant the payment of fees or compensation to an officer, out of the county treasury, it must appear that such payment is authorized by statute.
    2. Clerks of courts are entitled to be paid out of the county treasury for keeping up, continuing, and thereby completing, the general indexes, direct and reverse of all judgments, final orders and decrees, as mentioned in section 1263, Revised Statutes; but such clerks are not entitled to payment out of the county treasury for keeping up and continuing the alphabetical index, to pending suits and living judgments, provided for in sections 1255 and 1256, Revised Statutes. Nor are such clerks entitled to payment out of the county treasury for making direct and reverse indexes to executions issued by such clerks.
    3. The amount which such clerks are entitled to receive out of the county treasury for their services in keeping up and completing such general indexes, direct and reverse, of all judgments, final orders and decrees, is eight cents for each cause, and not eight cents for each name. The word “cause” in said section 1263, includes all the names to the judgment, final order, or decree, and the fee for indexing all of them is eight cents and no more.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Lucas county.
    The plaintiff in error, clerk of courts of Lucas county, presented a claim for making indexes to the board of county commissioners; and this claim not being allowed, an appeal was taken to the court of common pleas, where the case was heard by the court, the facts being agreed upon. Judgment was rendered in favor of the clerk for $54.00, being eight cents each for 675 causes, and that judgment was affirmed by the circuit court. Thereupon a petition in error was filed in this court by the clerk, and a cross-petition in error by the board of commissioners.
    The items of the clerk’s claim are as follows:
    WORK ON GENERAL INDEX OF JUDGMENTS.
    2033 parties names indexed in 442 eases.
    1673 “ “ 233 “
    Total, 3706 parties names indexed in 675 causes.
    WORK ON PENDING SUITS AND LIVING JUDGMENTS INDEX.
    1530 parties names in 444 separate suits
    1131 parties names in 360 ‘ ‘
    2223 individual judgments in 487 “

    281 individual judgments in 77 “

      373 executions
    5518 parties in 1368 separate suits.
    The common pleas court held that the county was liable for the work of keeping up the general index, and not liable for indexing the pending’ suits and living judgments; and in computing the work done on the g’eneral index held, that each separate suit should be considered as one cause and a fee of eight cents chargeable therefor, regardless of the number of parties to the suit.
    The board of county commissioners claim that the court erred in allowing’ the $54.00, and insist that the clerk is entitled to no pay whatever out of the county treasury for his services in keeping up the general indexes; while the clerk claims that he is entitled to payment out of the county treasury for the full amount of his claim as presented to the county commissioners.

      Clayton W. Everett, for plaintiff in error.

      O. W. Nelson, for defendant in error.
   Burket, J.

It is well settled that a public officer is not entitled to receive pay for services out of the public treasury, unless there is some statute authorizing the same. Services performed for the public, where no provision is made by statute for payment, are regarded as a gratuity, or as being compensated by the fees, privileges and emoluments accruing to such officer in the matters pertaining to his office. Jones v. Commissioners, 57 Ohio St., 189. To warrant payment out of the public treasury, it must appear that such payment is authorized by statute. Section 5, Article 10 of the Constitution. Diebolt v. Trustees, 7 Ohio St., 237; Anderson v. Commissioners, 25 Ohio St., 13; Strawn v. Commissioners, 47 Ohio St., 404.

Sections 1255, 1256 and 1257, Revised Statutes, are as follows:

Section 1255. The clerks of the several common pleas, circuit and superior courts shall make an alphabetical index of the names of all plaintiffs and defendants to pending suits and living judgments, .showing therein, in separate columns the names, court and number of the suit or execution, and when there is more than one suit or judgment' for or against the same party, it shall be sufficient to index the name but once and make entries opposite thereto, of the court and the number of the suit or execution; provided, that no such index shall be made in counties where the same has already been done.

Section 1256. The index required by the preceding section shall be made within six months from the passage of this act, and thereafter all new suits shall be so indexed at the time of the filing of the petition and all judgments at the time of the filing of the rendition, revival or a transcript thereof; provided, however, that whenever the court of common pleas of any county containing a city of the second grade, first class, shall direct, the clerk of said court shall make a re-index, in the manner provided in the preceding section, of all pending suits and living judgments, then on the docket of any or all of said courts, in which said re-index all n.ew suits shall be so indexed at the time of the filing of the petition and all judgments at the time of the filing of the rendition, revival or a transcript thereof.

Section 1257. The clerk shall receive the same fee for making such indexes, as is provided by law for making indexes to judgments, and whenever such re-index is made by him, by the order of the court, as provided in the preceding section, the clerk shall receive for re-indexing each pending suit and each living judgment, then upon the dockets of any of said courts, and actually indexed oy him, the sum of fifteen cents, payable out of the county treasury.

Section 1260, fixes the fees which clerks may tax against litigants, and among other fees that clerks may so tax are the following: “For indexing judgments'and final orders for each case, fifteen cents; making direct and reverse index to each execution issued, eight cents.”

Section 1263 provides that, “The clerk shall receive from the treasurer * * * the following fees; * * * making up and completing general indexes, direct and reverse, of all judgments, final orders, and decrees, eight cents for each cause.”

The history of these sections has been carefully compiled and reviewed by counsel, with a view of thereby fixing a construction upon the sections as they now stand, and we have carefully considered the questions thus raised, and have concluded that there is nothing in the repealed sections to change the ordinary construction to be placed upon these sections in their present form.

The index to pending suits and living judgments, provided for in section 1255, is to be made only in counties wherein no such index had been made before the enactment of that section in 1881; and section 1256 requires such index to be made within six months after the passage of the act, March 24, 1881. Under the amendment of these two sections, March 24, 1881, a new index was required to be made in counties in which no such index had previously been made, and for the making of such new index, it was provided in section 1257, that clerks should receive the same fees as provided by law for making indexes to judgments. And it was then as now provided by law, section 1263, that clerks should receive from the treasurer for making up and completing general indexes, direct and reverse, of all judgments, final orders, and decrees, eight cents for each cause.

It is therefore clear that for the making of these new indexes of all pending suits and living judgments within six months after the amendment of said sections 1255 and 1256 on March 24, 1881, clerks were entitled to receive their pay out of the county treasury. But we have failed to find any statute, and none has been cited, warranting payment out of the county treasury for continuing and bringing up these indexes of pending suits and living judgments from time to time as new suits should be filed, and new judgments rendered, and the compensation of clerks for such services, and for indexing executions, is covered by the fees for indexing allowed by section 1260 to be taxed against litigants.

The making up and completing of general indexes, direct and reverse, of all judgments, final orders, and decrees for which clerks are to receive eight cents for each cause, as provided in section 1263, includes not only the original making of such general indexes, but also keeping them up from time to time, so as to have at all times a complete general index of all judgments, final orders and decrees. As new judgments,. final orders or decrees are rendered, clerks are required to complete the general indexes by adding thereto all such new judgments, final orders and decrees, and for such services clerks are entitled to receive out of the county treasury the sum of eight cents for each cause.

The claim made by counsel for plaintiff in error, to the effect that each cause means each name, whether plaintiff or defendant, is not tenable. A name is not a cause, neither is a plaintiff or defendant a cause. The word cause is used in the sense of an action, or lawsuit. There may be many parties to an action, but all combined constitute but one action, one lawsuit, one cause. There is no error in the record.

Judgment affirmed. .


text:
    Doll v. Barr.

      Preferences among executions — Sued out during term when judgments rendered — Rule of distribution as to judgment and lien creditors — Section 5382, Revised Statutes.

    The provisions of section 5382, of the Revised Statutes, which forbid any preference among executions sued out during the term in which the judgments were rendered, or within ten days thereafter, and require that the money made, if insufficient to satisfy all of such writs, shall be distributed to the creditors in proportion to the amount of their respective demands, are not limited to the creditors whose writs are levied on the debtor’s property, or in the hands of the officer at the time of its sale, but embrace all whose executions are sued out within the specified time; and any distribution of the money by the officer before the expiration of that time, whereby a creditor is deprived of his proper share, is without justification, and renders the officer liable therefor.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Stark county.
    The original action was brought by Sarah S. Barr, doing business as The Buffalo Rubber Company, against Hiram Doll, sheriff of Stark county. The petition filed by the plaintiff in the court of common pleas is as follows:
    1. “The plaintiff, Sarah S. Barr, doing business as The Buffalo Rubber Company, for her cause of action against the defendant, Hiram Doll, sheriff of Stark county, Ohio, says:
    2. That the defendant, Hiram Doll, was, at the time of the various things complained of herein, and is now, the duly elected, qualified and acting sheriff of Stark county, Ohio.
    3. That at the January term of the common pleas court of Stark county, Ohio, to-wit: On the 4th day of February, 1895, a judgment by confession was entered in favor of Sampter Sons & Co., against Toronski Bros., in and for the sum of $4,000.87, with interest at 8 per cent, and costs taxed at $4.00; and on the same day, execution was issued to the sheriff of Stark county, who thereupon proceeded to and did levy on all the personal property of the said Toronski Bros., and subsequently sold the same at public sale for the sum of $4,500, as is evidenced by his return thereof, recorded in Execution Docket 12, page 56, of the Records of this court.
    4. That at the same term of said court, and on the same day thereof, like judgment by confession against said Toronski Bros.,were entered in favor of the following parties, arid for the following amounts:
    Jacob Geib, $175.20, with interest at 8 per cent, and costs taxed at $4.00.
    Dannemiller Bros., $262.11, with interest at 8 per cent, and costs taxed at $4.00.
    Sol Ertz, $601.41, with interest at 8 per cent, and costs taxed at $4.00.
    Samuel Rosenthal, $2,432.83, with interest at 8 per cent, and costs taxed at $5.00.
    5. That upon all of said judgments above recited, executions were sued out at the same term of court, to-wit: On the 4th day of February, 1895, and placed in the hands of the defendant, who, on the 16th day of February, 1895, proceeded to and did sell the stock of goods, merchandise and personal property of said Toronski Bros., for the sum, and in the manner heretofore recited, and did on the same day, of the proceeds thereof, wrongfully and unlawfully and contrary to the Statutes of Ohio, turn over to and pay to the attorneys of record for said judgment creditors, the following sums, to-wit:

      To Sampler Sons & Co...........................$2,044 98
    To Jacob Geib.............................................. 89 54
    To Dannemiller Bros............................. 133 97
    To Sol Ertz................................................... 818 53
    To Samuel Rosenthal............................. 1,243 48
    and retained thereof the sum of $169.50, in satisfaction of the costs of said writs.
    6. That at the same term of common pleas court, in and for Stark county, Ohio, to-wit: The January term for 1895, this plaintiff, by the consideration of said court, did, on the 13th day of March, 1895, recover a judgment against said Toronski Bros., in the sum of $132.18, with interest at 8 per cent, from March 13, 1895, and on the 9th day of April, 1895, and at and during the January term of said court aforesaid, an execution was sued out, directed to the defendant herein, the sheriff of Stark county, in the usual form prescribed by and returnable according to law.
    7. That at the same term of said court, to-wit: The January term, 1895, like judgments were by the. consideration of said common pleas court of Stark county, Ohio, entered against said Toronski Bros., in favor of the following parties, and for the following amounts:
    Steppacher, Arnold & Co., $493.07, with interest from March 20, 1895, and costs taxed at $10.00.
    Teplintz, Rosenburg&Co., $150.34, with interest from March 20, 1895, and costs taxed at $10.00.
    Louis Myers & Son, $125.65, with interest from March 20, 1895, and costs taxed at $14.00.
    George Updegraff & Son, $118.72, with interest from March 25, 1895, and costs taxed at $10.81.
    The United Shirt and Collar Co., $209.49, with interest from March 5, 1895, and costs taxed at $10.81. '

      Thorman Bros., $168.96, with interest from March 25, 1895, and costs taxed at $10.00.
    8. That upon all of said judgments heretofore set forth in paragraphs six and seven hereof, executions were sued out during the January (1895) term of said court, directed to the sheriff of Stark county, Ohio; the same were duly received by him, and by him wrongfully and unlawfully and contrary to section 5382, of the Revised Statutes of Ohio, returned with the following endorsement: “Received this writ---■, 1895, at --- o’clock P. M., I found no goods or chattels or land or tenements belonging to the defendants whereon to levy, and this writ is wholly unsatisfied, and returned as such.”
    9. That prior to the sale and distribution of the proceeds of the sale of personal property, of said Toronski Bros., as set forth in paragraph five hereof, this plaintiff notified the defendant that she would claim a right to participate in the funds realized from such sale, but the said sheriff aforesaid, disregarding the rights of this plaintiff, proceeded to pay out as heretofore set forth, the funds realized from the sale of goods and chattels aforesaid, to all the execution creditors whose judgments were rendered on the 4th day of February, 1895, and refused and still refuses after due demand by this plaintiff at the office of said sheriff, to pay to this plaintiff the amount pro rata which she is entitled to receive by virtue of her aforesaid judgment and execution and her right under the law to participate in the funds realized as aforesaid.
    10. That said judgment as heretofore set forth in favor of this plaintiff, and against Toronski Bros., still remains in full force and unsatisfied, and said Toronski Bros., or any of them, have no property or assets out of which the same can be satisfied, either in law or in equity.
    Wherefore this plaintiff prays that the defendant herein, the sheriff of Stark county, may be compelled and directed to correct his return in the ease of her said execution against Toronski Bros., as heretofore set forth, so as to bring into court for payment to her of her pro rata share of the proceeds derived from the sale of the personal property of said Toronski Bros., on any execution which may have come into the hands of the said sheriff of Stark county, during the January (1895) term of said court. And in the event said sheriff shall fail to so correct his return, then that he be amerced for the benefit of this plaintiff, in the sum of $132.18, judgment, and $11.00 costs, with interest thereon from March 13, 1895, and 10 per centum additional upon said sums of money, and the costs of these proceedings, in amercement to be taxed to, and for the use of this plaintiff.”
    A general demurrer to the petition was sustained, and judgment rendered in favor of the defendant for costs. That judgment was reversed by the circuit court, and the cause remanded for further proceedings.
    Error is prosecuted here to reverse the circuit court.
    Clark, Ambler <& Clark, and Thayer, Weber <& Turner, for plaintiff in error.

      Miller & Pomerene, for defendant in error.
   Williams, J.

The material facts of the petition are that, at the January term, 1895, of the court of common pleas of Stark county, judgments amounting in the aggregate to something over six thousand dollars were obtained against Toronski Bros., and executions issued on them were levied by the defendant, as sheriff of that county, on all of the chattel property of the debtors, which was sold under the writs for five thousand five hundred dollars, and the proceeds paid pro rata, by the defendant, to the execution creditors. Thereafter, but still at the same term of the same court, the plaintiff below recovered a judgment against the same debtors, and during the term caused an execution issued on the judgment to be placed in the hands of the defendant, and demanded of him a pro rata share of the proceeds of the property which he had sold, corresponding with the amount of her claim. The defendant refused to comply with the demand, and returned the writ unsatisfied, and endorsed no property whereon to levy.

The action is based upon section 5382, of the Revised Statutes, which contains the following provision: “When two or more writs of execution against the same debtor are sued out during the term in which judgment was rendered, or within ten days thereafter, no preference shall be given to either of such writs, but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands.”

Th,e language of this provision seems sufficient to enable the plaintiff to maintain her action. In express terms it forbids any preference among executions sued out during the term in which the judgments were rendered, or within the specified time thereafter, and requires that the money made on any of such writs shall, if insufficient to satisfy all of them, be distributed to all the creditors in proportion to the amount of their respective claims. It will be observed that it is not made essential to the right of any such execution creditor to share in the fund, that his writ shall have been actually levied on the property from the sale of which the fund is derived, nor that it shall be in the hands of the officer at the time of its sale; but all that is necessary to entitle him to that right is, that his execution be sued out within the required time. The levy of one or more of such executions and sale made thereunder, inures to the equal benefit of all execution creditors who come within the designated class, and they are severally entitled to their respective shares of the money so made.

The plaintiff in error contends, however, that other provisions of the statute require the language of section 5382 to be so restrained in meaning as to make it applicable only to executions which come to the officer’s hands before a sale of the debtor’s property takes place, and which could have been levied on the same property. The provisions referred to are those contained in sections 5375, 5383, 5396 and 5418, which declare that a debtor’s chattel property shall be bound from the time it is seized on execution, and enjoin upon the officer receiving an execution the duty to make immediate levy, proceed to advertise and sell the property without delay, pay the money made on the writ to the judgment creditor on demand, and return the writ within sixty days. There are some apparent discrepancies between these provisions and those of section 5382, but they are not irreconcilable. The former are general provisions regulating the course of procedure of officers holding writs of execution, while the latter are special, relating to the particular cases therein provided for; and under a familiar rule of construction the special must be regarded as in the nature of an exception to the more general provisions, and as controlling them in the special class of cases. In Endlich on the Interpretation of Statutes, section 216, the rule is stated to be, that; “where there are in one act, specific provisions relating to a particular subject, they must govern in respect to that subject, as against general provisions in other parts of the statute, although the latter, standing alone would be broad enough to include the. subject to which the more particular relate.” And, “if there are two acts, or two provisions of the same act, of which one is special and particular, and clearly includes the matter in controversy, whilst the other is general and would, if standing alone, include it also, and if reading the general provisions side by side with the particular one, the inclusion of that matter in the former would produce a conflict between it and the special provision, it must be taken that the latter was designed as an exception to the general provision.”

The fourth section of the act of March 1, 1831, regulating judgments and executions (Swan’s Statutes of 1841, 467, 469) is identical with the present section 5382, of the Revised Statutes; and in the construction of that act, in Wilcox v. May, 19 Ohio, 408, the fourth section was treated as a proviso qualifying its more general provisions; and it was there held to preserve the equality among executions issued during the term at which the judgments were rendered, notwithstanding they were levied at different times on lands in another county and it was declared by another section of the act that lands situated in counties other than the one in which the judgments were recovered, as well as goods and chattels of the debtor, should be bound only from the time of their seizure on execution. It was remarked by Hitchcock, C. J., in that ease, with respect to the purpose of the fourth section of the statute, that; “The object of the general assembly in making this provision, undoubtedly was, to give the several judgment creditors ample time, after the rendition of their judgments, to sue out executions and place them in the hands of the sheriff or other proper officer, and to prevent any advantage that might, by hasty action be gained by one creditor over another.” The re-enactment of that section without change after that decision, in the Civil Code, and then in the Revised Statutes, may be accepted as an unqualified recognition of the legislative intention as so judicially declared. That intent, it is obvious would be largely thwarted, if not wholly defeated, if a creditor who obtains his judgment at the beginning • of the term were allowed to appopriate the debtor’s property exclusively to the satisfaction of an execution sued out on it immediately, by having the property sold and the money paid over to him before other creditors could obtain their judgments at the same term;' and that construction of a statute which will defeat its purpose, wholly or partially, is always to be avoided if possible. True, as counsel urge, some inconvenience or even hardship may result to creditors who obtain judgments and sue out executions early in the term, by being compelled to await the close of the term before receiving their proportion of the proceeds of the debtor’s property sold under their writs; but it would be none the less a hardship on those whose judgments are obtained and executions sued out later in the term, if the earlier executions should be allowed to appropriate all of the proceeds of the debtor’s property. Considerations of inconvenience and hardship, are resorted to only in cases of doubtful construction, and never prevail against the positive provisions of the statute. By the express terms of this statute all creditors are given the whole of the term at which their judgments are obtained and ten days after its close within which to sue out their executions, and when sued out within that time, there can be no priority among them; all stand on an equality of right, and each is entitled to his proportion of the money made on any of the writs from the property of the common debtor. Nor is this the only class of cases under the execution statutes in which delay may be occasioned by the postponement of distribution until the close of the term. By section 5375, the debtor’s lands in the county where judgments are recovered against him, are bound from the first day of the term equally by all judgments rendered in suits commenced before the term; and by section 5378, transcripts of justices’ judgments filed in the preceding vacation also become liens bn the first day of the term equally with judgments rendered at that term. Though the term should continue for months, neither a judgment in such case obtained on the first day, nor a transcript of a justice’s judgment so filed, has any priority over a judgment obtained on the 'last day of the term. The lien of the latter relates back to and attaches as of the first day of the term; and it cannot be claimed that the first judgment creditor, or a transcript creditor could obtain an exclusive right to the proceeds oi the debtor’s land sold under execution issued on his judgment before the iater judgment was recovered, notwithstanding the general provisions of the statute require the officer to make the money without delay, pay it over on demand, and return his writ in sixty days. The safe course for the officer to pursue in all such cases is to withhold distribution until the expiration of the time within which liens of equal right may be obtained, or executions entitled to share in the fund may be sued out, or until distribution is ordered by the court.

The defendant below no doubt acted in good faith, under a mistake as to his duty, but that cannot affect the plaintiff’s legal rights.

Judgment affirmed.