
    Philip Grandin’s Executors v. Israel Anderson and John Holderfield.
    G. sold land to A. and gave a bond for a conveyance upon payment of the purchase money. A. thereupon, sold, in like manner, a portion of the premises to B., and afterward sold the residue, at the same time, to two several purchasers, giving a title bond to each. Subsequently, A. received a conveyance of the whole*premises from G., and, at the same time, to secure a balance of purchase money owing by him, executed a mortgage upon that part of the premises only which had been sold to one of the last two purchasers. The purchaser of the mortgaged premises was, at the time, indebted on his purchase in a sum greater than the mortgage debt. The mortgage having been duly recorded, the purchasers of the unincumbered portions of the land, subsequently completed their payments, and received conveyances from A. Several years afterward, the purchaser of the mortgaged premises, without actual notice of the mortgage, completed his payment, and received a like conveyance from A. Upon suit brought to foreclose the mortgage, Held:
    That the grantee of the mortgaged premises held the same subject to the full incumbrance of the mortgage, and that no vendor's lien existed in the case which would render the residue of the lands, or any part of them, liable to contribute to the discharge of the mortgage debt.
    Civil action. Reserved in the district court of Clermont county.
    This action was, originally, brought in the court of common pmas of Clermont county, to foreclose a mortgage given by the defendant, Israel Anderson, to Philip Grandin, the plaintiffs’testator, upon 66§ acres of land in that county, to secure the payment of a note for $299.89, executed and delivered by Anderson to Grandin, for the balance of the purchase money due upon 123 acres of land previously sold by Grandin to Anderson, and of which the mortgaged premises were a part. The petition is in the usual form, alleging the execution of the note, and of the mortgage to secure its payment, the recording of the mortgage, the failure of payment, and that Anderson the mortgagor, has conveyed the premises to the defendant John Holderfield.
    Anderson did not answer. The defendant Holderfield, by his answer, admits the execution of the note and mortgage, but alleges that the plaintiffs ’ testator originally sold to Anderson 123 acres of land, and that afterward, and before the execution of the mortgage, Anderson sold to one Bools 23 acres thereof, and subsequently sold to William Holderfield the further quantity of 33|- acres, and to the respondent John Holderfield 66f acres, being the residue of the tract so purchased as aforesaid. That the sales to William and to John Holderfield were both made on the same day, and that they each went into immediate possession of the tracts purchased by them respectively. Respondent alleges that Grandin knew of the sales previously made by Anderson, and denies Gran-din’s right to incumber respondent’s part of the premises with the whole amount of said note, claiming that it is equitably liable only for two thirds of the amount due on the note, and that the taking of the mortgage upon his portion of the premises alone was a fraud upon him, and avers that he was an innocent purchaser, and also sets up sundry payments.
    The case was, on appeal, submitted to the district court, and reserved for the decision of this court upon the following agreed statement of facts :
    “That Philip Grandin was originally the owner of 123 acres of land; that he sold the same to Israel Anderson by title bond, and that afterward said Anderson sold by title bond to Ralph Bools 23 acres of said land; and afterward sold by title bond to William Holderfield 33J acres of said land, and at the same time sold to J ohn Holderfield 66f acres of said land; that both J ohn and William entered into the possession of said premises respectively, at the time of said sale; and there was due at that time from said Anderson to said Grandin a balance of the purchase money; and that after said sale, to-wit: .on the — day of May, 1849, said Gran-din conveyed by deed to said Anderson the entire tract of 123 acres, and at the same time took from said Anderson the mortgage in the petition described, for the balance of the purchase money, and that said mortgage was. afterward, on the — day of May, 1849, duly recorded. That at the time of the recording of said mortgage, there was due and owing from John Holderfield to the said Anderson, of the purchase money, more than the amount of said mortgage; and that deeds of conveyance were executed to each of said parties as follows: to Ralph Bools on the 8th day of May, 1849; to William Holderfield on the 13th day of September, 1849; and to John Holderfield on the 23d day of September, 1852; and that the payment of the purchase money by said John Holderfield to said Anderson was in the year 1852.”
    
      Philip B. Swing, for plaintiffs,
    argued: That upon the facts of the case, they were entitled to a judgment of foreclosure for the full amount due upon the note, and cited Murray et al. v. Ballou et al., 1 Johns. Ch. 566; White & Tudor’s Eq., vol. 1, pt. 1, p. 63; Boos v. Ewing, 17 Ohio Rep. 522; Shires v. Craig, 7 Cranch, 34, 48; Vattier v. Hinde, 7 Peters, 252 ; Boone v. Chiles, 10 Peters, 177; Larrowe v. Beam, 10 Ohio Rep. 506; 2 Daniel’s Ch. Pr. 777; Natz v. McPherson, 7 T. B. Mon. 599; Jewett v. Palmer, 7 Johns. Ch. 65; Frost v. Beekman, 1 Johns. Ch. 298, 303; Duphey v. Frenagle, 5 Ala. (S. & P.) 215; James v. Hubbard, 1 Paige Ch. 228; Commercial Bank v. Western Reserve Bank, 11 Ohio Rep. 444; Nellons et al. v. Truax et al., 6 Ohio St. Rep. 104.
    
      J. S. Griffith, for John Holderfield,
    argued: That the 66f acres purchased by him can not be charged with the whole amount of the purchase money due from Anderson to Gran-din, and cited Stauffer v. Eaton et al., 13 Ohio Rep. 332; Irwin v. Davidson, 3 Ired. Ch. 311; Chapman v. Chum, 5 Ala. 397; Tiernan v. Beam et al., 2 Ohio Rep. 387; Morrison’s adm’r v. Beckwith, 4 Monroe, 76; Burk et al. v. Chrisman et al., 3 B. Mon. 50; Dickey v. Thompson, 8 B. Mon. 312; Beal v. Barkley, 10 B. Mon. 261; Stevens v. Cooper, 1 Johns. Ch. 430 ; Johnson v. Rice, 8 Greenl. 157; Gibson v. McCormick, 10 Gill. & Johns. 65; Paxton v. Harrier, 11 Penn St. 312; Cheesebrough et al. v. Van Schaick et al., 1 Johns. 409; Fassett v. Taber et al., 20 Ohio Rep. 540; James v. Hubbard et al., 1 Paige Ch. 235; Sugden Ch. 18, sec. 1; Neil v. Kinney et al., 11 Ohio St. Rep. 69; Latham v. Morgan, 1 Smed. & Marsh. Ch. 618; Hall v. Butler, 6 Ohio St. Rep. 207. That when John Holderfield purchased this land he was chargeable with his due proportion of its purchase money due to Grandin, and no more; that Grandin could have withheld the title until the last dollar of the purchase money due him was paid, but that he could not defeat the right of John Holderfield to a just contribution from William Holderfield; and having released the 33J acres purchased and held by William, by taking the mortgage on John’s land, the mortgage lien thereon must be ratably reduced.
   Scott, J.

I fail to discover in the facts embodied in tha agreed statement, any substantial ground upon which the defense attempted to be set up in the answer of the respondent Holderfield can be sustained. The plaintiffs are not asserting the mere equitable lien of a vendor; but an incumbrance created by a mortgage, executed and delivered to their testator, and on the faith of which he parted with the legal title to his lands.

At the time of defendant Holderfield’s purchase, Anderson, his vendor, had not the legal title to any part of the premises. This was in Grandin, who had a right to retain it, until the purchase money owing by Anderson should be fully paid. And this right of his could not be impaired, or in any way prejudiced, by contracts to which he was a stranger; nor, in regard to such contracts, was he bound to make inquiry.

But supposing Grandin, at the time of receiving this mortgage, to have had full and accuratp knowledge of the contract between Anderson and John Holderfield, and of the extent to whcih it had been executed; yet the execution of the mortgage was not in fraud of, nor, in fact, prejudicial to the rights of Holderfield, nor could it have occasioned any loss or damage to him, except through his own subsequent negligence. Eor at the date of the transaction, Anderson had not only just received a conveyance of the legal title to the land mortgaged, but he also held an equitable interest therein to an extent greater than the sum secured by the mortgage. Holderfield was himself indebted to Anderson on his contract of purchase of the same premises, in a larger sum than the residue of purchase money due from Anderson to Grandin. It is true that Grandin might have taken as a security, a mortgage upon the whole tract of 123'acres, which he had sold to Anderson; but as to the propriety of doing so he might properly exercise his own discretion, and other parties have no right to complain of the limitations of the lien, so long as the incumbrance did not exceed the mortgagor’s equitable interest in the portion incumbered.

It is clear that there is no vendor’s lien in the case which can be asserted against the premises purchased by Bools, or by William Holderfield. They received from Anderson unincumbered titles, Grandin having previously accepted as a security for the balance of purchase money due him, the mortgage now in suit. This mortgage was promptly put on record, and when Bools and William Holderfield, subsequently, made their final payments, and severally received clear titles, they might well rely on this mortgage, as an extinguishment of any possible lien upon their respective premises for purchase money remaining due to Grandin; especially as John Holderfield, the purchaser of the mortgaged premises was still owing, on his purchase, more than enough to discharge the incumbrance. But, in the face of this recorded mortgage, John Holderfield several years afterward, made his final payment to Anderson, and obtained from him a conveyance, without procuring a satisfaction and discharge of the mortgage. Any loss, resulting from this negligence of his, can not be equitably thrown, either wholly, or in part, upon other and innocent parties. His want of actual knowledge of the mortgage, can not avail as a defense against the plaintiffs, whose testator had given him the means of knowledge, by causing it to be seasonably recorded.

The plaintiffs are entitled to a decree for the amount remaining unpaid upon their note, and, in default of pavment, to an order for the sale of the mortgaged premises.

Brinkerhoff,. O.J., and Day, White, and Welch, J J. concurred.  