
    John Sidle v. John Maxwell et al.
    The object of the statute requiring the record of mortgages, being notice to-persons other than those who are parties to the instrument, a mortgage maybe valid and binding as such without record, as between the parties to the instrument.
    The execution of a mortgage is the act of a mortgagor, but the filing it for record is exclusively the act of the mortgagee, not requiring the assent of the former, and not in reality a part of the execution of the instrument.
    The language of the court in the case of Holliday v. The Franklin Bank of Columbus, 16 Ohio, 533, declaring “ that the delivery of a mortgage for record is a part of the execution of the instrument, and that, before the filing i::'for record, a mortgage has no validity, either in law or in equity,” must be received with the qualification that it has exclusive reference to the effect of the instrument as to those not parties to it.
    This is a proceeding in chancery, in which, among other things, partition of certain real estate is prayed for, and the question of the validity of a mortgage on the premises presented.
    The heirs of Ann Robinson, deceased, and also Daniel Heltzler, : are made defendants; the former as the owners of the fee of the undivided fifth part of the lands in question, and the latter as the holder of a mortgage lion upon the same interest. It appears that Heltzler was the holder of a note against James Robinson, the husband of said Ann Robinson, deceased, for two thousand dollars, on ■which John White, deceased — the ancestor of said Ann, from whom said lands descended to her — had been security. And in order to release the administrators of the estate of White, and enable them to make final settlement without paying the note, Heltzler consented to the erasure of White’s name from the note, and took, in lieu of the personal security, this mortgage, executed by James Robinson and his wife, the said Ann Robinson, dated May 30,1846. It was acknowledged, at the time of its date, in due form, except that, in the certificate of the wife’s acknowledgment, there occurred .an omission of the words, “ by me, separate and apart from her said husband.” Thus acknowledged, the mortgage was delivered for record on the 3d, and recorded on the 4th of June, 1846. Immediately after the record, the omission in the justice’s certificate was discovered; whereupon Robinson and wife re-acknowledged the .execution of the mortgage before the same officer, who adopted his former certificate, by interlining the words omitted, and changing the date from the 30th of May to the 2d of June; and as thus acknowledged, the mortgage was not recorded until the 15th of December, 1850, which was after the death of Ann Robinson. *It appears that the land was held in the right of Ann Robinson/ and descended to her heirs; and the whole controversy submit ted for decision here, relates to the validity of the mortgage ..against the heirs of Ann Robinson, deceased.
    
      
      Win. White, for Daniel Heltzler, one of the defendants, made the following points:
    I. A moi’tgage is good against the mortgagor without being recorded. The law, providing that a mortgage shall take effect from the time of delivery for record, construed with a view to its object, has reference to the rights and claims of third persons, and not to the parties to the instrument. This proposition is not inconsistent with the former decisions of the Supreme Court. Lake v. Dond et al., 10 Ohio, 415; Stansel v. Roberts, 13 Ohio, 148; Mayham v. Combs et al., 14 Ohio, 428. The case of Holliday v. Franklin Bank of Columbus et al., 16 Ohio, 533, affirms the points decided in Mayham v. Combs et al. The manifest meaning of the judge, delivering the opinion in Holliday v. Franklin Bank, is apparent from the-decision in White v. Denman, made at the same term. 16 Ohio, 59; 1 Ohio St. 112. The recording of the instrument can in no sense be said to form part of its execution, as between the parties, although it may reasonably be regarded as incomplete, until made public by record, as to the rights of third persons. In this sense, its record may be said to form part of its execution. 19 Vin. Abr. 512 ; 1 Dallas, 434; Purdon’s Digest, 163, see. 8; Leving v. Will, 1 Dallas, 450; 4 Dallas, 153; Purdon’s Digest, 172; 13 Serg. &. Rawle, 167; Conn. Stat. 390, 391; 14 Conn. 46; 4 Kent’s Com. 168-171.
    II. If an unrecorded mortgage be operative as a conveyance, so as to create an incumbrance on land against the mortgagor, while living, it will be equally so against his heirs at law, after his decease. Bond’s Lessee v. Swearingen, 1 Ohio, 311; Piatt v. St. Clair’s Heirs et al., 6 Ohio, 227, 238-240.
    *IH. The execution of the mortgage and its delivery to the-mortgagee invest him with authority to cause it to be filed for record at any time. From the time of its filing, it becomes as' effectual against the heirs as it would have been against the ancestor, if he-had been living. Such authority, being a power coupled with an interest, is not limited for its execution to the life of the author, and is irrevocable. Bergen v. Bennett, 1 Caine’s Cas. in Er. 1; Hunt v. Rousmaniere’s Adm’r, 2 Mason, 244; 1 Parsons on Contracts, 60,61 ; 2 Kent’s Com. 643, 644, side pages; Knapp v. Alvord, 10 Paige’s Ch. 208; 23 Pick. 330, 332, 333.
    IY. The only examination of the wife authorized and required of the officer the the is one rate and apart from her husband. Where the officer certifies that she was examined, and the contents made known to her, etc., it is to bo presumed that the examination certified to have been made was a separate one. Stevens v. Doe ex dem. Henry, 6 Blackford, 475; Watson v. Clendenin et al., Ib. 477; Lessee of Ward v. Barrow, 2 Ohio, 241.
   Bartley, J.

The only question for determination in this case is that of the validity of the mortgage, as between the heirs of Ann Robinson, deceased, and Heltzler, the mortgagee. The claim that the mortgage is ineffectual, is founded on the supposed construction heretofore given to the statute of 1831, and the amendatory act of 1838, which declare “that mortgage deeds shall take effect, and have preference, from the time the same are delivered to the recorder of the proper county for record.” Rev. Stat. 310, 311.

If the mortgage were operative against Ann Robinson in her lifetime, it must be equally so against her heirs; for, so far as the inheritance is concerned, the heirs stand in the shoes of the ancestor, and can take no other interest or estate than that which she possessed ; and if the mortgage was valid to her, they are estopped by her deed.

*Every statute must be construed according to its intent, and with reference to the mischief to be prevented, and the remedy provided. The manifest object of the statute requiring the record of mortgages, is notice of the incumbrances created; and of course, this notice has reference to persons other than those who are parties to the instrument. No sensible object could be accomplished in subjecting persons to the expense of this public record, with a view of notice to the parties themselves. The provision of the statute, therefore, declaring that mortgages shall take effect and have preference from the time of their delivery for record, has reference to the rights of persons other than the parties to the instruments, and was designed to regulate and fix with certainty the priority of right among incumbrances. The expression which has been used in some of the reported decisions in this state, “that the delivery of a mortgage for record is part of the execution of the instrument,” is not strictly correct. All the decisions in which this language is used, determine simply the effect of the mortgage in relation to its giving a preference over other lienholders. The case of Holliday v. Franklin Bank of Columbus et al., 16 Ohio, 532, in which the language of the court in this respect is the most unguarded, and most needs qualification, simply determines that a mortgage, previous to its delivery for record, has no effect, either at law or in equity, against a subsequent judgment. The result of all the decisions on this subject is, simply, that a mortgage does not take effect as a recorded instrument, or, in other words, does not take effect in giving any priority over subsequently acquired liens, until it is delivered for record. In reality, the delivery of the mortgage for record is not a part of the execution of the instrument. The requisites for the execution of mortgages are especially prescribed in the statute. The execution and acknowledgment of a mortgage is the act of the mortgagor — the-delivery of it requires the concurrence of the mortgagor and the mortgagee; but tbe filing it for record is exclusively the act of the mortgagee. Indeed, by the express ^language of the statute, the instruments required to be recorded are executed mortgages. The execution and delivery of a mortgage are intended to divest the mortgagor of his estate, and the recording of the mortgage to give notice to the world of its existence. So that a mortgage is valid and binding as such without record, as between the parties to the instrument. And the delivery of it for record being exclusively the act of the mortgagee, not requiring the assent of the mortgagor, or being in reality any part of the execution of the instrument, it will become operative as to third persons only when delivered for record, although such delivery be after the death of the mortgagor. In the case of White v. Denman, 16 Ohio, 59, it was held, that although an instrument of writing defective in its execution, as a mortgage, by having but one subscribing witness, could not be set up to defeat a subsequent lienholder, yet, that as between the parties to the instrument, it will be regarded in equity as a good and valid mortgage. The mortgage in question, therefore, is a good and valid instrument against the heirs of the mortgagee, Ann Robinson.

Decree in favor of Daniel Heltzer, and cause remanded for further proceedings.  