
    John L. Gill v. Abner H, Pinney’s Administrator.
    4. A mortgage, not recorded till after the death of the mortgagor, is not, foi that reason inoperative as against the general creditors of the estate.
    3. A mortgage is not invalid, as to third persons, on account of uncertainty in the description -of the debt intended to be secured, when, upon the ordinary principle allowing extrinsic evidence to apply a written contract to its proper subject matter, the debt intended to be secured may be shown, as between the •parties. Iiurd et al. v. Robinson et al., 11 Ohio St. Rep 232, approved and ifollowed.
    Error to the superior court of Franklin county.
    In the court belGW, Enos Hopkins, as. administrator of Ab:-ner H. Pinney, deceased, filed a petition to annul an'd vacate a ■mortgage executed and delivered July 7, 1857, by Pinney, ■the decedent, and Anna C. Pinney, his wife, who is still living, to John L. Gill, the plaintiff in error, on certain real estate in Franklin county.
    The petition claims the relief sought upon two grounds :
    1. That the mortgage was not filed for record until after •the death of Pinney; “that on said 7th day of July, 1857, the said Pinney executed and delivered to said Gill a certain written instrument, purporting to be a mortgage upon a larg*quantity of real estate (a copy of which is hereto annexed and made a part of this petition), but was not to be recorded, unless the said Gill should consider it necessary in order to save himself from loss. That said Pinney died at six o’clock, or thereabouts, in the morning of the 21st day of October, 1857, and that said Gill, thereupon, at two o’clock in the afternoon of the same day, and after the death of said Pinney, and after said Gill had been informed of his death, filed said supposed mortgage for record in the recorder’s office of said Franklin county.”
    2. That the mortgage is void by reason of the uncertainty and vagueness of the condition. The condition is as follows:
    “ Provided, however, and these presents are upon this express condition, that, whereas the said Abner H. Pinney has this day executed and delivered to the said John L. Gill, his certain penal bond, which is in substance as follows; ‘Know all men by these presents, that I, Abner IT.’Pinney, of the county of Franklin, and State of Ohio, am held and firmly bound unto John L. Gill, of said Franklin county, in the penal sum of thirty thousand dollars, to the payment of which well and truly to be made, I do hereby bind myself, my heirs, executors, and administrators. Sealed with my seal, and dated this 7th day of July, A. D. 1857. The condition of the above obligation is such, that whereas the said John L. Gill has heretofore become liable and is now liable as surety for said Abner H. Pinney upon a large amount'of notes and bills, either as joint drawer with said Pinney of said notes or as accommodation indorser of said bills or otherwise, which notes and bills have been negotiated and used by said Abner H. Pinney for his own benefit; and whereas, at the request of the said Abner IT. Pinney, the said John L. Gill is about to become hereafter surety in like manner for said Abner H. Pinney, upon a large amount of bills and notes, to be negotiated and used by the said Abner H. Pinney for his own benefit. Now if the said Abner IT. Pinney shall well and truly pay all such notes and bills on which the said John L. Gill is now liable as aforesaid, or on which he shall hereafter become liable as surety for the said Abner H. Pinney as aforesaid,when and as they shall respectively become due, and shall indemnify the said John L. Gill against and save him harmless from all loss and damage by reason of his having heretofore become, and of his hereafter becoming liable on said bills or notes respectively as aforesaid, and from all loss and damage arising from the said John L. Gill having heretofore become surety for the said Abner H. Pinney upon any bills or notes or in any manner whatsoever, then these presents to be void, otherwise, in full force. (Signed) A. H. Pinney [Seal].’ Now if the said Abner H. Pinney shall well and truly pay all said notes and bills mentioned in the condition of said bond when and as they shall respectively become due, and shall indemnify the said John. L. Gill against and save him harmless from all loss and damage by reason of his having heretofore become, and of his hereafter becoming liable on any bills or notes as specified in the condition of said penal bond, and from all loss and damage arising from said John L. Gill having heretofore become, or hereafter becoming surety, for the said Abner H. Pinney, upon any bills or notes, or in any manner whatsoever; and if the said Abner H. Pinney shall well and truly do and perform all things by him stipulated to be done and performed in and by the said penal bond so by him executed, then these presents; shall be void; otherwise, in full force.”
    The petition sets forth “ that at the time of the death of said Pinney, and the filing of said supposed mortgage for record, the said Gnll was liable as surety and indorser for said Pinney on certain debts, as follows: Debts in existence at the time of the execution and delivery of said supposed mortgage, the evidence of which had not been changed by renewal or otherwise; debts in existence at the time of the execution and delivery of said supposed mortgage, but the evidence of which had been changed by renewal or otherwise; new debts created after the execution and delivery of said supposed mortgage.”
    Gill demurred to the petition. His demurrer was over ruled and he excepted. Judgment was thereupon given against him in accordance with the prayer of the petition, and lie again excepted, and filed a petition in error in this court to reverse that judgment.
    
      W. II. &¡ W. Swayne, for plaintiff in error:
    1. As to the effect of the death of Pinney before the mort gage was recorded:
    Mrs. Pinney is still living. We suppose there can be nr doubt that the mortgage binds her dower estate in the. mort gaged premises, and that the mortgagee is entitled to the ben efit of it, so far as this point is concerned.
    Pinney’s creditors did not acquire any lien upon the mort gage premises, at his death. The general creditors, like the heirs, stand in the shoes of the ancestor, and can take no other interest or estate than that which he possessed. Bac, Abr., Heir and Ancestor E; Gree v. Oliver, Carthew, 245; Wilson v. Wilson, 13 Barb. S. C. Rep. 254; Covell v. Weston et al., 20 Johns. Rep. 413, 419.
    Our statutes as to executors and administrators, and that of descents and distributions, are silent upon the subject of such a lien.
    This mortgage was indisputably a lien upon the mortgaged premises at the time of the death of Pinney. And section (148) of the administration act, providing for the application of the money arising from the sale of real estate, requires that the proceeds of these mortgaged premises, when sold by an executor or administrator, be applied in payment of the liabilities secured by the mortgage, in preference to the general debts of the decedent.
    We find no mention made in the leading works upon common or equity law, of a lien in favor of the general creditors upon the estate of a decedent. Vide Bla. Com., Bouv. Inst., Story, Adams, and Willard’s Equity. Williams’ Ex’rs, passim.
    
    The term lien is inaccurately used in describing the right to charge the lands of the decedent in the hands of the heir by proper proceedings. If there be such a lien it is general o-r rather universal in respect of the entire estate of the decedent. It extends alike to all the property — real, personal and mixed — to lands, chattels and choses in action.
    The lien created by the mortgage, before it was recorded, was specific, and that specific lien existed before and at the death of Pinney. Sidle v. Maxwell et al., 4 Ohio St. Rep. 236; Bank of Muskingum v. Carpenter, 7 Ohio Rep., pt. 2, p. 69.
    “Such unrecorded instruments are good and effectual as between the parties.” Fosdick v. Barr, 3 Ohio St. Rep. 475 See also Bloom v. Nogle et al., 4 Ohio St. Rep. 52; Sidle v. Maxwell et al., 4 Ohio St. Rep. 236, 239, 240.
    The doctrine of notice has no application to general cred itors.
    
      The mortgagee has the legal title, and a court of equity will not deprive him of it, except upon the fulfillment of the condition specified in his deed.
    Except as to fraudulent conveyances, the creditors of a decedent take what would otherwise have passed to the heir — ■ neither more nor less. Whatever at any time affected or incumbered the estate in the hands of the decedent in his lifetime, affects and incumbers it (with the exception named) equally after his death, as if he were living. The stream can not rise higher than its fountain-head. The creditors can not take more than the decedent himself possessed.
    The administrator is the legal and personal representative of the deceased, in respect of property and debts, just as he left them. The status of neither is in anywise affected by the demise of the party thus represented.
    Where the mortgage is unrecorded, it is not allowed to affect the premises, as against those who by their own acts have acquired liens, and might be injured by the-want of notice. So far the decisions of this court have gone. They have gone no further. The court is now asked to take a step, and a long one, beyond this point.
    The case of Strong v. Beach et al., 11 Ohio St. Rep. 283, in principle, decides the present case.
    2. As to the vagueness and uncertainty of the condition of the mortgage :
    
      The mortgage is conditioned,to secure the fulfillment'of the stipulations of a penal bond in the sum of thirty thousand dollars. The condition of the bond is two-fold, (a) that Pin ney should pay, and indemnify Grill against the paper upon which Grill was then his surety, and (b) that he should do the same thing in reference to the paper upon which Grill might thereafter become his surety.
    There can be no doubt of the validity of this bond as regards both branches of the condition. In the event of a breach, there could be no difficulty in framing a petition, as to both the existing and future liabilities, which would enable the plaintiff to recover. Can there be any doubt that a mortgage given to secure the fulfillment of such an obligation is equally valid? Does not one proposition necessarily follow the other ? The extent of the remedy in either case, would perhaps be limited by the penalty of the bond.
    If there were no bond in the case, we should insist that the condition of the mortgage, in respect of the liabilities referred to, is sufficiently definite to render it valid. Kramer et al. v. The Trustees of the Farmers’ and Mechanics’ Bank of Steubenville et al., 15 Ohio Rep. 253, 256; Spader v. Lawler, 17 Ohio Rep. 371; Choteau et al. v. Thompson et al., 2 Ohio St. Rep. 114, 116, 117, 121, 130; same case, 3 Ohio St. Rep. 424, 427; Tousley et al. v. Tousley et al., 5 Ohio St. Rep. 78; Patterson v. Johnson, 7 Ohio Rep., pt. 1, p. 225; Brinkerhoff v. Lansing, 4 Johns. Ch. Rep. 65; 1 Hilliard on Mort. 286, and cases there cited; Vanmeter’s Ex’rs v. Vanmeter, 3 Gratt, 148; Union Bank of Maryland v. Edwards, 1 Grill and Johnson, 346; McDaniels v. Colvin et al., 16 Verm. 300; Utley v. Smith, 24 Conn. 290; Conrad v. Atlantic Ins. Co., 1 Pet. 448; Crane v. Deming et al., 7 Conn. 387; Stouton v. Pasco, 5 Conn. 442, 447, 449, 450; Gruber v. Henry, 6 Watt, 57; Lewis v. De Forest, 20 Conn. 427.
    
      P. B. Wilcox, for defendant in error:
    The defendant in error claims the mortgage to be invalid on two grounds:
    
      1. Recording the mortgage after Pinney’s death created no valid lien as against the creditors of his estate. As. against Pinney, his heirs and devisees, it is good without any recording at all. As against creditors, it has no validity at all, until it is recorded.
    The moment Pinney died, a lien in favor of his creditors was created, by act and operation of law, upon all his real estate. The title passed to the heir or devisee, but yet with that lien fastened upon it. If the heir or devisee alienated the land to a third person, still the lien held good. 3 Mass. 523, 542; 1 Dessaus. 427; 10 Paige, 205 ; 8 Ohio Rep. 217-221; 6 Ohio Rep. 227, 240. It seems from these cases that such a lien does exist, and that the law, as in all other cases of liens, will find a way to enforce it whenever it becomes necessary.
    Now, at what time did this lien first attach ? Clearly, at the death of the ancestor. At the moment of his death, the law, by its silent, but irresistible act, fastened its lien for the benefit of creditors. And the law allows hours of the day to be counted in order to determine priority of lien. 16 Ohio Rep. 111.
    It is noticeable that Gill stipulated not to put the mortgage upon record unless he “ should consider it necessary in order to save himself from loss.”
    In other words, Gill, by express agreement, permits Pinney to deal with the public, as being the real owner of an unincumbered estate, of large value, until he (Gill) shall think himself unsafe, and then he may spring his secret mortgage, and cut out all other creditors who have been dealing with Pinney on the faith that he was, in fact, as well as in appearance, the absolute owner of the property. Now, it is submitted that Gill was too tardy in his movement. Pinney died at six o’clock in the forenoon, and Gill recorded his mortgage at two o’clock in the afternoon. So that the law, in favor of creditors, outran Gill by the space of eight hours.
    But, pray, why did Gill undertake this race ? or why did he record his mortgage at all ? Upon the theory of the other side, the mortgage, recorded or unrecorded, has a prior lien, or rather, has the only lien Avhich the law will recognize. It is claimed to be good against Pinney, his heirs, and all creditors who have not some prior specific lien. The mortgage, it is claimed, overrides the intermediate lien which the law creates on the death of the mortgagor, in favor of creditors. If so, the time never came when Gill was unsafe, and the recording was a vain thing.
    On the contrary, we claim the law had done its perfect work several hours before Gill began to move.
    Upon the assumption of the other side, it certainly can not be necessary to record a mortgage as against the general creditors of a deceased mortgager. But how long may a mortgagee withhold his secret mortgage after the death of the mortgagor ? If hours, why not days, and months, and years? Hoav long after the death of the mortgagor must his administrator, or creditors, continue to watch the records to see whether or not some old mortgage has not been filed since the grant of administration ?
    In some cases the appraisers are to return the lands of the deceased, with their value, to the probate judge. Will the laAV allow a mortgagee to lie by and keep his mortgage a secret all this time ?
    It is not easy to see all the troubles that may arise, by giving a priority to mortgages purposely withheld from record after the death of the mortgagor.
    2. The mortgage is invalid for vagueness and uncertainty in respect to the debts intended to be secured, and which were in existence at the time the mortgage was executed and delivered.
    The question is not as to future advances or future liabilities. The distinction is between debts existing at the time the mortgage is made, and future liabilities to be thereafter incurred. See 24 Barb. 510, and the language of Ch. Kent therein cited.
    The defendant in error can well raise the objection in this case, because he represents creditors, and the estate is insolvent.
    Individual creditors not being allowed to prosecute suits in order to get judgments, the administator properly represents their rights. ,
   Scott, C.J.

The defendant in error, who was plaintiff below, claims that the mortgage of the plaintiff in error creates no valid lien, as against the general creditors of his intestate’s estate; because it was not recorded till after the death of the mortgagor. Secondly, That said mortgage is void, for vagueness, and uncertainty in respect to the debts intended to be secured, and which were in existence at the time the mortgage was executed.

In regard to the question first presented, it is very clear that the recording of a mortgage is no part of its execution, and is, therefore, not necessary to give it validity as against the mortgagor, or as against his heirs or devisees. Fosdick v. Barr, 3 Ohio St. Rep. 471; Sidle v. Maxwell et al., 4 Ohio St. Rep. 236. But the defendant in error, conceding this, claims, that at the moment of Pinney’s death, a lien in favor of his creditors, was created, by act and operation of law, upon all his real estate; and that as against this lien, a mortgage, not recorded till eight hours afterward, is wholly void.

The correctness of this claim must depend on the nature of the lien which thus attaches in favor of general creditors. We suppose it to be, neither more nor less, than the right which the law gives to the creditors, upon a deficiency of personal assets, to subject to the payment of the debts due them, the real estate, the ownership of which has passed by the death of their debtor, to bis heirs or devisees. The heir takes the land subject to the payment of the ancestor’s debts; for he occupies the position of a volunteer; nor do purchasers from the heir take the land discharged from this liability; for they are chargeable with notice of the character of their grantor’s title, as heir; and only stand in his shoes. This right which thus follows the real estate, may, therefore, very properly, be called a lien upon it, as against the heir or devisee, and those claiming under them. And, so far, its equity is quite apparent.

But can this contingent lien of the mere general creditor, equitably go farther ? Can it take precedence of a Iona fide specific lien, which bound the lands in the hands of the debtor, up to the moment of his death; and, descending with the land to the heir, remained equally binding upon him ? A creditor acquires no specific lien by his debtor’s death. If he was a mere general creditor before the death, he remains such after it. His position with respect to other creditors remains unchanged. He and they have the same right, through the intervention of an administrator, to subject to the payment of their debts, if necessary, all the property of their debtor, .which has passed to his heirs, devisees or legatees. This right, which constitutes the lien in question, is acquired by no act of diligence on the part of the creditor; it arises from no act of the debtor, but results merely from the act of God. It attaches with the change of title, and in consequence of such change. The lien must, therefore, be limited to the property which passes; and to that, in the condition in which it passes. If lands descend to the heir charged with an in cumbrance created by the act of the ancestor, the lien of the general creditor must attach to it in the same cohdition. The lien is occasioned by the descent cast, and the extent of the effect must be limited by that of the cause,

The statute which permits lands which the deceased may have conveyed, with intent to defraud his creditors (and which do not therefore descend to the heirs) to be sold by the administrator for the payment of debts, forms no exception to the principle which we have stated. For this right of the creditors, is a very different thing from the lien which we are considering. It can only be enforced against the fraudulent vendee, or his assignee with knowledge of the fraud. And it is a right which is not created by the death of the debtor, but existed during his life in favor of the creditors, and is merely continued to the adminstrator as their trustee, after his death.

At common law, the death of the debtor gave no lien upon his lands to the creditors. The personalty alone became assets in the hands of the administrator. The lien in question is the creature of the statute. It can be enforced by the administrator only upon the order of the proper court, the op6 ration of which is in the nature of a judgment or decree, against the heirs. They must either pay the debts or permit the lands to be sold. The statute directs the money arising from the sale to be applied as follows : First — To discharge the costs and expenses of the sale and the per centum and charges of the executor or administrator thereon, for his administration of the same. Secondly — To the payment of mortgages and judgments against the deceased according to their respective priorities of lien, so far as the same operate as a lien on the estate of the deceased at the time of his death,” etc. S. & C. St. 594, § 148.

The mortgage in question was valid “ against the deceased,” if not void for uncertainty in respect to the liabilities intended to be secured, and operated as a lien on the estate of the deceased,” till his death; and still remained operative against the same estate in the hands of the heir.

It is not necessary to say what would have been the effect of a failure to record this mortgage, until after an order of sale had been obtained against the premises. It is enough to to know that the want of notice could not affect the administrator till after his appointment.

We think the construction long since given to the statute by which unrecorded mortgages are held void as against subsequent judgment creditors, and mortgagees with actual notice, is sufficiently stringent, and are satisfied that the reason of the statute does not require us to go farther.

The second objection taken to the mortgage in this case on account of vagueness and uncertainty in respect to the debts intended to be secured, is disposed of by the case of Hurd et al. v. Robinson et al., 11 Ohio St. Rep. 232. That case, reported since' the argument of the present one, decides th< question against the plaintiff below.

We think the judgment of the court below must be reversed, the demurrer to the petition sustained, and the petition dismissed.

Sutliee, Peck, Gtiolson and Brinkerhoee, J J., concurred  