
    Dodd v. Bartholomew.
    
      Written instrument — Mistahe in name— Validity.
    
    
      1. Where an error occurs in the name of a party to a written instrument, apparent upon its face, and, from its contents, susceptible of correction, so as to identify the party with certainty, such error does not affect the validity of the instrument.
    
      2. Charles A. Clark and Sarah Clark, his wife, executed and delivered, in due form of law, a mortgage to S., signing and sealing it as " Charles A. Clark” and "Sarah Clark;" but in the granting, defeasance, and testatum clauses, Charles A. Clark is described as Charles B. Clark, and his wife, although properly described in the granting clause as Sarah Clark, is described as Mary Clark in the testatum clause. In the certificate of acknowledgment the officer certifies that "the above named Charles B. Clark and Mary Clark, his wife, the grantors in the above instrument,” personalty came before him and acknowledged the signing and sealing of the same; and further, that “ the said Mary Clark, wife of the said Charles A. Clark,” was examined separate and apart from her said husband. Held, that the errors in the names of the grantor and his wife, in the several clauses of the deed, and in the certificate of acknowledgment, are apparent upon the face of the instrument, and that the contents show, with certainty, that the persons, Charles A. Clark and Sarah Clark, who signed the deed as grantor and wife, are the same persons elsewhere desc.ribed-in the deed as Charles B. Clark and Mary Clark; and that the deed so executed and delivered, having been recorded, is a valid mortgage, not only against the makers, but against all subsequent lien-holders, by mortgage or otherwise.
    Error to the District Court of Licking county.
    In January, 1876, Frederick Schuler and his wife conveyed a certain lot in the town of Newark to Charles A. Clark, and at the same time the latter with his wife Sarah, to secure a part, $325, of the purchase-money, executed and delivered a mortgage on the property to the vendors.
    The mortgage was duly executed and acknowledged; but, by a'mistake of the scrivener in drafting it, Charles A. Clark was described in the granting, defeasance, and testatum clauses as Charles B. Clark; and his wife, Sarah Clark, though properly described in the granting clause, was described as Mary Clark in the testatum clause; but the deed is properly signed and sealed by each respectively as Charles A. Clark and Sarah Clark.
    In the certificate of acknowledgment, the justice of the peace certifies that, personally came before him “ the above named Charles B. Clark and Mary Clark, his wife, the grantors in the above named instrument,” and acknowledged the signing and sealing of the same; and that the said Mary Clark, wife of the said Charles A. Clark, was examined separate and apart from her husband.
    Subsequently to the execution and record of the above mortgage, Clark and wife, on ^February 23,1876, executed and delivered to Samuel Dodd a mortgage on the same property to secure the payment of $190, which was duly recorded. Afterward the debt to Schuler not being paid, and Clark having died, Schuler commenced a suit in the court of common pleas, for the correction and foreclosure of his mortgage, against the widow and heirs of the decedent; and such proceedings were had that a decree was made accordingly, which was assigned by Schuler and wife to Bartholomew, the defendant in error. Afterward, and while the money derived from the sale of the land was in court, Dodd, by its leave, became a party and filed an answer and cross-petition, upon which Bartholomew was made a party, who also answered. Each claimed priority over the other, the latter, not only one the ground of the prior execution and record of the mortgage of his assignors, but also on the ground that the assignment of the judgment and decree, previously entered in favor of Schuler and wife, carried with it their lien for the unpaid purchase-money, intended to be secured by the mortgage. The contention was determined by the judgment of the court in favor of Dodd, and Bartholomew appealed to the district court of the county where it was determined in favor of the appellant; and this proceeding is now prosecuted in this court to reverse the judgment of the district court and affirm that of the common pleas.
    J. JR. Stanbery, for plaintiff in error.
    "The Schuler mortgage is not a lien as against Dodd, because it was not properly executed and acknowledged, and because it contained the names of persons as grantors who did not own the lands, and it was not acknowledged as the statute directs by the grantors.
    A defectively .executed mortgage, as between the parties, may be treated as an agreement for a mortgage and the agreement specifically enforced. Bloom v. Noggle, 4 Ohio St. 46.
    Dodd is a stranger to both the mortgage and decree, and can not be affected by them, even although he had notice of the agreement. Such agreement created no lien. Erwin v. Shuey, 8 Ohio St. 510; White v. Denman, 16 Ohio, 60; s. c., 1 Ohio St. 110; Smith v. Hunt, 13 Ohio, 260; Johnston v. Haines, 2 Ohio, 55; Mayham v. Coombs, 14 Ohio, 429.
    A vendor’s lien is an equity personal to the vendor, and is not assignable. Jackman v. Hallock, 1 Ohio, 318; Tierman v. Beam, 2 Ohio, 383; Brush v. Kinsley, 14 Ohio, 21.
    If, then, the assignee of note or mortgage to secure a vendor’s lien can not take the vendor’s equity by assignment, how can he acquire such an equity when the lien is merged in judgment? If he can not take title to the evidences of the judgment, he can not acquire it by assignment of the judgment itself, for that is founded upon things not assignable, and is the same as the evidence. Unger v. Leiter, 32 Ohio St. 212; McArthur v. Porter, 1 Ohio, 99; Taylor v. Foote, Wright, 356.
    
      Charles H. Kibler, for defendant in error.
    The mortgage of Clark and wife was valid in its execution and acknowledgment. It was sealed, signed by Charles A. Clark and Sarah Clark (the proper names of the mortgagors), and the proper officer signed the certificate of acknowledgment. There were no such defects as appear in Johnston v. Haines, 2 Ohio, 55; Miami Exporting Company v. Gano, 13 Ohio, 269; White v. Denman, 16 Ohio, 59; Cin. W. & Z. R. Co. v. Clinton Co., 1 Ohio St. 100; Cincinnati v. Bickett, 26 Ohio St. 49; Barry v. Hovey, 30 Ohio St. 347.
    In those cases the defects were in the execution.
    
    The objection to the fact that the name of the mortgagor is called Charles B. Clark in the body of the instrument is not tenable. The defect is cured by his proper signature. “As to the name of the grantor, his signature fixes the actual identity of the person.” Jones on Mort., sec. 63; Gould v. Barnes, 3 Taunt. 505.
    The last statement of fact or intention often governs. It is the name signed to the instrument which has force. Mistakes which are apparent are immaterial. Turnpike Co. v. Brush, 10 Ohio, 111; Fosdick v. Perrysburg, 14 Ohio St. 472.
    The first name is correct. The middle letter is not necessary and is immaterial, unless it were shown that there was another person connected with the title whose name was Charles B. Clark. Franklin v. Talmadge, 5 John. 84; Roosevelt v. Gardinier, 2 Cow. 463. And see also Hitesman v. Donnell, 40 Ohio St. 287; Mack v. Schlotman, 7 Am. L. Rec. 665; Jackson v. Bonenam, 15 John. 226; Jackson v. Cody, 9 Cow. 140; Jackson v. Hart, 12 John. 76.
    Charles A. Clark would not be permitted to deny that it was his valid mortgage. 1 T. Raymond, 2; 1 Salk. 214; Gould v. Barnes, 3 Taunt. 505.
    Schuler and wife had a vendor’s lien if the mortgage was defective.
   Minshall, J.

The claim of the defendant in error, that he is entitled to a priority on the Schuler mortgage over that of Dodd, is placed on two grounds.

That the judgment assigned to him by the Schulers carried with it their lien for the purchase-money of the mortgaged property, o'f which, ho claims, Dodd had notice.

That the Schuler mortgage is, without any reformation by the court, a valid one. Being persuaded that the latter claim is correct, it is unnecessary to consider the former one-.

It is a well settled principle, applicable to the construction of deeds and other instruments, that all their parts are to bo construed together, and the meaning ascertained from a consideration of each and every part; and, in the application of this rule, it is uniformly held that a false description, whether of the subject-matter or of the parties, does not vitiate the instrument where the error appears upon its face and the instrument supplies within itself the means of making the correction.

This principle was applied in Poland v. Connolly, 16 Ohio St. 65, to a misdescription of the property in a resolution for the abatement of a nuisance on real estate; in Milford & C. Turnpike Co. v. Brush, 10 Ohio, 111, to a misdescription of the corporation in a subscription to its stock; in Fosdick v. Village of Perrysburg, 14 Ohio St. 473, to a misdescription of the obligor of a bond, it being described as “the town,” instead of “ the incorporated village, of Perrysburg;” and in Hitesman v. Donnell, 40 Ohio St. 287, the name of thegra.ntee, to whom the conveyance was intended to be made as trustee, was left blank, but the instrument, a trust mortgage, containing within itself all that was necessary to indicate how the blank should be filled, the court held that it created a valid lien on the lands as a mortgage from the date of its filing for record.

In the case now under review the mortgagor, with his own hand, signed his name to the instrument as “ Charles A. Clark” and sealed it, and his wife, likewise, signed her name as “ Sarah Clark” and sealed it. In the certificate of acknowledgment the officer certifies that “the above-named grantors” personally came before him and acknowledged the signing and sealing of the same; but, through a mistake of the scrivener, the one is described as Charles B. and the other as Mary Clark, and similar errors occur in the body of the deed; but in all instances Charles B. Clark is further described as the grantor and Mary Clark as his wife. In a note to section 63 of Jones on Mortgages it is said, by the author, that the signature of the grantor or mortgagor fixes the actual identity of the party. So that there is no want of certainty as to the grantors in the deed; they are Charles A. Clark and Sarah Clark, his wife, and any errors occurring in the name of either, in other parts of the instrument, are corrected by their signatures to it.

The question presented here is very different from that where an error occurs in the execution of the instrument. The formalities required in the execution of a mortgage are prescribed by statute, and can not be dispensed with. To be a valid instrument, as against third persons, a mortgage must be signed, sealed, and acknowledged as required by statute. But the form of the instrument is not so prescribed. The form and requisite certainty of it is left to the general rules of law. Hurd v. Robinson, 11 Ohio St. 232. It is observed by Gholson, J.,in delivering the opinion that “the inconvenience-that may occasionally arise to third persons from uncertainty of description is more sufferable than the gross injustice which would be frequently inflicted by a stringent rule as to certainty.”

And in Strang v. Beach, 11 Ohio St. 283, Brinkerhoff, J., delivering the opinion, observes that the statutes relate solely to the execution and recording of the mortgage, and that it is settled that a mistake in these respects can not be corrected, but adds: “As to all mistakes and defects of the instrument, in .other respects, the statutes are entirely silent, and upon them the decisions which have been made upon questions arising under these statutes have no bearing.”

In each of the cases cited by counsel for the plaintiff in error there was a defect in the execution of the mortgage. In Barry v. Hovey, 30 Ohio St. 347, the mortgage had but one witness. In White v. Denman, 16 Ohio, 60, there was but one subscribing witness. In Erwin v. Shuey, 8 Ohio St. 511, there was no seal. In Bloom v. Noggle, 4 Ohio St. 46, there was only an agreement for a mortgage. In Johnston v. Haines, 2 Ohio, 55, the official character of the officer taking the acknowledgment had been omitted, and nothing appeared on the face of the acknowledgment by which this could be supplied.

In Smith v. Hunt, 13 Ohio, 260, the name of the grantor was left blank in the certificate of acknowledgment, and -did not, as in this case, refer to him as the above named grantor.

Our conclusion is that the mortgage executed by Clark and wife to Schuler and wife became a valid lien on the property from the time it was delivered for record, and was, therefore, prior in lien to the one subsequently executed by them to Dodd.

Judgment affirmed,.  