
    Hitesman v. Donnel.
    An insolvent debtor duly executed and delivered a mortgage of lands to a trustee, to secure a bona fide indebtedness to his wife. The name of the trustee was omitted in the granting clause, and also in the covenants of the mortgage; but the grant was to-and his assigns forever, in trust, for the use and benefit of his wife, her heirs and assigns. In the clause of defeasance was a copy of a promissory note signed by the debtor and payable to the assignee for the use and benefit of his wife. The mortgage was duly recorded, and afterwards other parties obtained judgment liens on the lands. Held:
    
    1. That the mortgage, taking all its parts together, furnishes the means to supply the omission of the name of the grantee, and it was not error to so reform it as to supply this omission.
    2. That the mortgage created a valid lien on the lands from the date when it was filed for record.
    S. A mortgage thus made, to secure a bona fide indebtedness of the mortgagor to his wife, does not enure to the benefit of all the creditors of the mortgagor.
    Eeeor to the District Court of Warren County.
    The plaintiff in error on the 5th day of June, 1879, filed his petition in the common pleas to subject the lands therein described to the payment of a judgment against Theophilus Donnel, making numerous other lienholders parties, among whom was the defendant in error, Harriet Donnel, the wife of Theophilus Donnel. The lien of the plaintiff and those of all the defendants were subsequent to the mortgage of the defendant, Harriet Donnel. What was done in the common pleas in the case, the record does not show; but at the April term, 1880, of the district court the case was tried on appeal, when the court found the facts of the case as follows: That in the year A. D. 1868 the said Theophilus Donnel obtained a loan from his wife, the said Harriet Donnel, of funds belonging to her separate estate to the amount of fifteen hundred dollars ($1,500), which sum he promised to repay her with interest; that' he did not at that time deliver to her any note or other writing evidencing said indebtedness; that on the 10th day of February, 1879, while he owed his said wife said sum of money and interest, he found himself considerably involved, unable to pay the claims of all his creditors, including the said claim of his wife. And his said wife desired and requested that he should secure her said claim; that said Theophilus Donnel then and there agreed to secure his said wife by executing to her his note secured by mortgage on his real estate; that upon the advice of their counsel it was determined not to make the note and mortgage directly to her, but to have the intervention of a trustee; that thereupon it was agreed between the said Theophilus and the said Harriet that one Michael Roat should be the trustee to hold said security-for said Harriet; that on said day a note and mortgage were drawn by their attorney, of which said note and mortgage the following are true copies, to wit:
    
      Know all men hy these presents:
    
    That I, Theophilus Donnel, of Warren County, in consideration of Twenty-four Hundred Dollars heretofore received by me from, my wife, Harriet Donnel, out of her separate property and by me appropriated, as and for her separate money, in the purchase and payment of the price of the real estate herein described, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey to tlie said______________ _______________________________________________and his assigns forever in trust for the use arid benefit of said Harriet Donnel, her heirs and assigns, the following described real estate,__________________________________________ _________________________(description of premises)__________________________ ____________and all the estate, title and interest of the said Theophilus Donnel either in law or equity, of, in and to said premises; together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; to have and to hold the same in trust for the said Harriet Donnel, her heirs and assigns forever. And the said Theophilus Donnel for himself, and for. his heirs-, executors and administrators doth hereby covenant with .the said_________________________________ ________________________Trustee, as aforesaid, and his assigns, that he is the true and lawful owner of the said premises, and hath full power to convey the same; and that the title so conveyed is clear; free and unincumbered; and further that he will warrant and defend the same against all claim or claims of all persons whomsoever. Provided, nevertheless, that the said Theopliilus Donnel shall pay, of cause to be paid at its maturity a promissory-note hereby secured, and which note is as follows:
    “ Three months after date I promise to pay to Michael Roat for the use and benefit of Harriet Donnel Twenty-four Hundred Dollars, for value received by me from her of her separate estate, with interest from date.
    “ February 10th, 1379. THEOPHILUS DONNEL.”
    
      In Witness Whereof, the said Theophilus Donnel and Harriet Donnel, who hereby releases her right and expectancy of dower in the said premises, have hereunto set their hands and seals this tenth day of February, in the year of our Lord one thousand eight hundred seventy-nine.
    THEOPHILUS DONNEL, (Seal.)
    HARRIET DONNEL, (Seal.)
    
      Signed, sealed and acknowledged in the presence of us.
    
    Peter Doughman,
    Charles Tigar.
    
      The State of Ohio, County of Warren, ss.
    
      Be it remembered, That on the tenth day of February, in the year of our Lo'rd one thousand eight hundred and seventy-nine, before me the subscriber, Peter Doughman, a J. P. within and for said Warren County, personally came Theophilus Donnel, the grantor in the foregoing mortgage deed, and acknowledged the signing and sealing thereof to be his voluntary act and deed for the uses and purposes therein - mentioned. And the said Harriet Donnel, wife of the said Theophilus Donnel, being examined by me separate and apart from her said husband, and the contents of said mortgage being by me made known and explained to her as the statute directs, declared that she did voluntarily sign, seal and acknowledge the same, and that she is still satisfied therewith, as her act and deed for the uses and purposes therein mentioned.
    
      In Testimony Whereof, I have hereunto subscribed my name and affixed my seal on the day and year aforesaid.
    PETER DOUGHMAN, J. P. (Seal.)
    In and for Warren County, Ohio.
    That subsequent to the drawing of the said note and mortgage, and on the 10th day of February, 1879, in the absence of their attorney, a justice of the peace was called in before whom said mortgage was signed, sealed and acknowledged without filling up the blanks left for the name of the trustee; that the matter of the said blanks was spoken of at the time, but that it was concluded by Donnel and the justice of the peace that as the mortgage had been drawn' by an attorney it .was probably right, and that it had better be executed as it was, and Donnel said he would show it to his attorney and if necessary that it could be corrected; that Donnel at the time of the execution of the mortgage believed it to be sufficient in form to effect the security intended thereby to be given to his said wife; that the papers were shown to the said attorney on the next day while he was in the act of leaving the station on the train, who remarked after a casual glance that the mortgage seemed “ all right; ” that soon thereafter, to wit: on the 11th play of February, 1879, the mortgage was duly filed for record; that said note and mortgage were executed by said Theophilus Donnel for the purpose of preferring the claim of said Harriet Donnel secured thereby; that neither before nor at the time of the execution of the note and mortgage was the said trustee, Michael Roat, consulted.as to his acceptance of the trust; that subsequently, and two or three days after the execution aforesaid, said Theophilus Donnel presented the note to said Roat and explained to him the nature of the trust, who accepted said trust and at the same time'delivered the note to said Theophilus Donnel for safe keeping, who has had the possession thereof since and up to the time of the-bringing of this suit, and that no part of said note has been paid. That when said mortgage was filed for record, the same was, by the recorder, indexed as a mortgage from Theophilus Donnel to Harriet Donnel, and that the defendants, other than said Harriet Donnel, claiming, and having liens on said lands hereinafter set forth had, before acquiring their said liens, no notice of said mortgage, and the lien thereof, other than that afforded by the record of said mortgage, but said plaintiff had notice thereof before acquiring his lien in his petition set forth.
    Upon this finding the court proceeded to correct and reform the mortgage of Donnel and wife, so as to supply and insert therein the name of Michael Roat as grantee, and thereupon entered a decree for the sale of the land, directing that out of the proceeds of such sale the lien of Roat as trustee be first paid, and that the other liens be afterwards paid according to their priorities..
    A petition in error is filed here by the lienholders other than Michael Roat, to reverse this decree.
    
      
      W. F. Ellsrotk and C. M. Thompson, for plaintiffs in error.
    The reformation could not be made of the mortgage to the prejudice of judgment creditors. Van Thorniley v. Peters, 26 Ohio St., 471; White v. Penman, 1 Id., 110; Erwin v. Shuey, 8 Id., 510 ; White v. Penman, 16 Id., 60;' Bloom v. Ffoggle, 4 Id., 45.
    The failure to insert the mortgagee’s name makes the instrument totally defective, and is certainly as essential an element of a proper execution as the omission of a witness. Is not the failure to insert the name of a grantee as much a defective execution by implication of the law, as the signing of the instrument is by express terms ? Both make the instrument nugatory, and require a court of equity to make it operative and effectual, and until that time legal and vested rights of innocent parties are not affected by it.
    We claim that when there is an absolute want of some essential part of a deed or mortgage, there is neither a patent nor latent ambiguity, and extrinsic evidence has nothing to apply to its proper subject matter. In short the instrument is no mortgage or deed until made so by a court of equity, and from that time only does it affect the rights of third parties. Hood v. Brown, 2 Ohio, 266; May-ham v. Combs, 14 Id., 428; and eases above cited.
    The record of the instrument gave no legal or constructive notice to affect the rights of third parties. Jennings v. Wood, 20 Ohio, 261; Pringle v. Bunn, 37 Wis., 449; 16 Ohio, 60; 20 Id., 261; 4 Id., 45; 26 Ohio St., 474; 16 Id., 552.
    The conveyance inured to the benefit of all the grantor’s creditors. Conrad v. Paneost, 11 Ohio St., 685; Pichson v. Paw son, 5 Id., 218; Hide v. Olds, 12* Id., 591; Harhroder v. Eeiby,á Id., 602; Rev. Stats., § 6343.
    
      W. S. Williamson, for defendant in error.
    We maintain that courts of equity will interfere, to correct mistakes, not only between the original parties, but also those claiming under them, whether as heirs, legatees, devisees, assignees, voluntary grantees, or judgment creditors — that courts of “equity will correct all errors and defects, and treat the instrument according to the intention of the parties.” Swan & C., 694; Davenport v. Sovil, 6 Ohio St., 459; Goshorn v. Purcell, 11 Id., 641; Smelters v. Rainey, 13 Id., 568; Adams’ Equity, 406; Story’s Equity, vol. 1, sec. 165; Simmons v. North, 3 Smedes & Mar. R., 67; Wall v. Arrington, 13 Ga., 88; White v. Wilson, 6 Blackf., 448; Gouverneur v. Titus, 6 Paige Ch. R., 347; Strang v. Beach, 11 Ohio St., 283; Whitehead v. Broion, 18 Ala., 682; Rhodes v. Outcalt, 48 Miss., 367; Young v. Cason, 48 Id., 259.
    We claim that Harriet Donnel stands in the relation of a bona fide purchaser for value, said mortgage being executed for the purpose mentioned therein, and she therefore has a superior equity. A subsequent judgment creditor does not stand as a purchaser, and is not entitled to the privileges of that position. He is remitted to the rights of the mortgagor, and he acquires a lien only upon the interest of the mortgagor, and must yield to every claim that could be successfully asserted against the mortgagor. Jones on Mortgages, vol. 1, sec. 458; Anketel v. Converse, 17 Ohio St., 11; Tousley v. Tousley, 5 Id., 78.
    It is the purpose and intention of the parties that governs. Perkins v. Dibble, 10 Ohio, 434.
    Deeds omitting words of grant are held good. Bridge v. Wellington, 1 Mass., 219.
    The fact that a name other than the grantee’s appears in a place in the deed where the grantee’s name ought to be, does not warrant the finding that the conveyance was to such other person. Hawriek v. Jackson, Texas, 188Q; 16 Id., 204; 9 Id., 445; 3 Gilb., 239;
    Where the intention of the parties can be gathered from the instrument, the court will carry that intention into effect. 1 Mass., 135; 6 Id., 32; 7 Id., 384; 15 Pick., 27; 19 Id., 446.
    The mortgage did not inure to the benefit of all the mortgagor’s creditors. Lloyd v. Fulton, 1 Otto, 479; Payne v. Troyman, 68 Mo., 339.
   McCauley, J.

The mortgage was duly executed and recorded. The only defect in it was the omission of the name of the grantee. . But the grant was to-and his assigns in trust for the use and benefit of Harriet Donnel, her heirs and assigns. And the covenants were to-, trustee as aforesaid.

In the clause of defeasance, the promissory note of Theophilus Donnel to Michael Roat was payable to bim for the use and benefit of Harriet Donnel. It is quite plain that the granting elause and the promissory note set out in the defeasance have reference to the same trustee and the same beneficiary, and thus is furnished the means of making definite and certain all that is wanting to make the mortgage a complete instrument.

If the name of the grantee had been omitted from the mortgage by mistake or inadvertence, the defect would be one that could be corrected by proof aliunde. Strang v. Beach, 11 Ohio St., 283; Goshorn v. Purcell, Id., 641.

Counsel for plaintiff in error insist, on the authority of Van Thornily v. Peters, 26 Ohio St., 471; Erwin v. Shuey, 8 Id., 510; and White v. Denman, 16 Ohio, 60, that the mortgage was fatally defective.

These were all cases involving the effect of defectively executed mortgages, in which it was held that a mortgage to operate of its own force must be executed, according to the statute prescribing the form and requisites of such instruments. This mortgage presents a question wholly different from the one determined in those cases. And containing within itself the means to make it definite and certain, we think there was' no error in so reforming it.

It is contended that the mortgage from the husband, who was insolvent at the time it was given, to a trustee for the us.e of his wife secured to her a preference over other creditors and should inure to the equal benefit of all the creditors of the husband.

If the husband had given a mortgage to one of his creditors who was under no disability to take it to secure a debt, suck a mortgage would have been valid both at law and in equity. If the wife was a bona, fide creditor, as found by the district court, and might take security for her debt, she Avas entitled to security in a form, and in effect, as available to her as that taken by any other creditor, to him for his debt.

A mortgage directly from the husband to his wife, while it would have dispensed with a trustee and would not have been within the letter of the statute, would have been void at law, and subject to the uncertainty of being upheld in equity. Her security in this form would have been something less than that which might have been taken by a creditor not under disability. Assuming her right to take security in a form as ample as might have been taken by any of the creditors of her husband, this security was given in the only way in which it could have been done without impairing that right. The mortgage was in legal effect equivalent to an assignment under section 6343 of the Revised Statutes, Harkrader v. Leiby, 4 Ohio St., 603, and Avould have inured to the benefit of all the creditors of the mortgagor if the beneficiary had been anyone other-than his wife.

The office of the trustee under this mortgage was not to hold the security of the mortgage merely for the benefit of creditors; but to hold it for a creditor who could not have taken or held it for herself. The mortgage was the legal mode of giving security by the husband directly to the wife.

We are of opinion therefore . that there rvas no error in the judgment of the district court in so holding.

Judgment affirmed.  