
    Hibbs v. Insurance Company.
    1. The will of W. M. contained the following provision : “ I give and devise to my beloved wife, in lieu of dower, the farm on which we now reside, situate in Franklin county, Ohio, containing about two hundred acres, during her natural life. At the death of my said wife, the real estate aforesaid I give, devise and bequeath'to my grandson, William Miller.” The provision in lieu of dower also embraced a bequest to the wife of certain personal property. On the 18th day of November, 1850, the will was duly admitted to probate, and on the same day the widow of the decedent appeared in court and made her statutory election to take under the will. The widow owned in fee simple a tract of eighty acres of land constituting a part of the farm mentioned in the will, which she acquired by inheritance, and of which she held possession until her death — Held: That upon the widow’s election to take, under the will, the grandson became entitled to an equitable estate in remainder in the eighty abres of land.
    2. After the widow’s election she executed a warranty deed of the eighty acres to one J. F., and thereafter borrowed of an insurance company . $4,000, and to secure the payment thereof mortgaged the premises to the company — the company having at the time no actual knowledge of the execution of the will or of the widow’s election to take under the same. The deed to J. F. was not placed on record for more than two years after its date, and more than one year after the execution and record of the mortgage — Held: That the probate of the will and the widow’s election to take under the same were not constructive notice to the mortgagee of the equitable interest of the grandson in the eighty acres of land, and that the mortgagee has the first and superior lien on the premises.
    Ebbob to. tbe District Court of Franklin County.
    On the 8d day of November, 1850, William Miller, Sr., of Franklin county, Ohio, died leaving a last will and testament executed on the 10th day of. August,' 1850, and containing the following provisions:
    
      Item 1., I give and devise to my beloved wife, in lieu of dower, the farm on which we now reside, situate in Franklin county, Ohio, containing about two hundred acres, during her natural life; and all the stock, household goods, furniture, provisions and other goods and chattels which may be thereon at the time of my decease, qr as much of the same as she may choose to retain during her natural life; and all or any portion of the dividends or interest arising from my bank stock and other moneys at interest, as she may from time to time desire. At the death of my said wife, the real estate aforesaid I give, devise and.be-, cjueath to my grandson, William Miller.
    * * « * *. ■ # * * *
    
      Item 3. I give and bequeath to. my dear son, Adam (whom I appoint executor of this my last will), all my bank stock and other money at interest in especial trust to and for the uses, and purposes following, to wit: He shall keep the stock and money aforesaid securely and profitably invested, and the dividends and The interest from the same shall be paid over, from time to time, as they may be receivecl, to my beloved wife, during her lifetime, and, upon her decease, the said stocks, with t.he unexpended dividends, shall be for his own use forever.
    Christina Miller, the wife of the testator, was the owner in fee simple, at the date of the will and at the time of her husband’s decease, of a tract of eighty acres of land which was a part of and had become so incorporated with the home farm mentioned in the will as to have lost its identity except upon a careful survey. This tract she acquired by descent from her father, and held possession of the same until her death in the year 1873. On the 18th of November, 1850, the will of William Miller, Sr., was admitted to probate in the court of common pleas, and on the same day, Christina Miller the widow appeared in that court, and publicly elected to take under the will. On the 1st of July, 1870, Christina Miller, in consideration of the sum of one dollar and of love and affection, executed a warranty deed to her brother Jacob Fisher of the above-mentioned tract of eighty acres, which deed was not placed on record until December 7th, 1872. On the 5th day of October, 1871, Christina Miller borrowed of the Union Central Life Insurance Company — the defendant in error — four thousand dollars, for which she executed to the company her promissory note payable in five years after date, “with interest at eight per cent, per annum. Interest payable seini-annually.” To secure the payment of said note, she executed on said 5th day of October, 1871, to the insurance company, a mortgage on the said eighty acres of land, which was duly recorded on the 11th daj* of October, 1871'. Upon non-payment of the note at maturity, the insurance company brought the original action' below to foreclose the mortgage, making Christina Miller, Adin G. Hibbs as guardij n of Christina Miller, Jacob Fisher and , William Miller parties defendant. Upon the death of Mrs. Miller, the defendant Hibbs was appointed her administrator, and was made a defendant in that character. Jacob Fisher defendant has always remained in default. William Miller defendant filed an answer, asserting that he was the grandson of Christina Miller and William Miller, Sr., her husband; and that although Christina Miller owned the mortgaged premises in fee simple prior to the' death of her husband, she had accepted the provisions of her husband’s will, which bequeathed and devised a large part of his estate to her, and devised the premises in question to her for life, with remainder to him; and that under the operation of the law of election, her estate in fee simple had been changed to a life estate only; and that upon her death he became entitled to the premises free from encumbrance by the plaintiff’s mortgage.
    The answer of Hibbs, administrator, alleges, that Christina Miller, at the date of the execution of the mortgage, was very old and imbecile, and totally unable to comprehend the nature of the transaction, and that therefore it was void; and that the note and mortgage were usurious and void.
    None of the officers or agents of the insurance company had actual knowledge of the execution of the will of William Miller, Sr., or of the election of Christina Miller to take under the same.
    The court of common pleas found, on the issues joined, that the equity of the case was with the defendant William Miller, and that by reason of the election of Christina Miller under the will of her husband, her estate in said eighty acres of land became a life estate only; and that the remainder in fee simple thereby became and upon her death vested in fee simple in the defendant William Miller; and that by reason thereof, the plaintiff could not have an order to sell said premises, but must be enjoined from selling the same, and also from holding or claiming title thereto or to any part thereof under or by virtue of the mortgage from Christina Miller.
    On appeal the district court found as follows:
    “ 1st. — That the eighty acres of land in the petition described, Constituted a part of the home farm of about two hundred acres mentioned in the will of William Miller, Sr. .Id — That the said Christina Miller derived her title to the said eighty acres by descent in fee simple from her father’s estate, and that she held the possession of the same until her death. 3d — That she made the statutory-election to take under the will of her deceased husband, William Miller, Sr.; but said election did not divest her of the legal title to said eighty acres of land. 4th — That she also made her election in equity to receive the benefits conferred upon her by the will of her said deceased husband, William Miller, Sr., and that thereby the said William Miller, the defendant herein, became entitled under said will and election, to an equitable interest in the said eighty, acres of land in remainder; but, 5th — That said plaintiff had no notice, either actual or constructive, of the said equitable interest of the said William Miller in said eighty acres of land at the date of said note and mortgage in said petition mentioned. 6th — That, at the time of the execution of said note and mortgage to the sajcl plaintiff, the said Christina Miller was not incapacitated from making the same, and the said plaintiff received the same in good faith and without any notice of an}*- disability on the part of the said Christina Miller to execute the same, and that the said note and mortgage constitute a valid and subsisting contract in favor of said plaintiff; and that there is now due to the said plaintiff upon the same the sum of seven thousand three hundred and fifty-four dollars and twenty-six cents ($7,354.26), being the principal sum of $4,000 and interest thereon at 8 per cent, per annum, payable semi-annually, from the 5th day of October, 1872, to the first day of the present term of this court, to wit: March 19th, 1881, and that the same is not usurious, as claimed by said defendant, but is a valid 'and subsisting lien upon the said eighty acres of land in said mortgage and petition described.”
    The district court also ordered, adjudged and decreed, that the said eighty acres of land be sold, and that the cause be remanded to the court of common pleas to carry the order and decree into execution. William Miller and the administrator of Christina Miller filed their motions to set aside the judgment and order of the district court, and for a new trial, which motions were overruled, and a bill of exceptions was taken embodying all the testimony offered on the hearing of the cause. To reverse the judgment of the district court, the petition in error is prosecuted in this court.
    
      Henry O. Nolle, H. L. H O. Taylor, for plaintiff in error.
    I. As to the effect of a statutory election, see White v. Brokaw, 14 Ohio St., 839, 348; Jennings v. Jennings, 21 Id., 56; Huston v. Gone, 24 Id., 11, 20; Bane v. Wick, 14 Id., 505, 512; Luigart v. Ripley, 19 Id., 24; Allen v. Gets, 3 Pa., 310; Upshaw v. Upshaw, 2 Hen. & M., 381; Reaves v. Garrett, 34 Ala., 558; Phelps v. Phelps, 20 Pick., 556; Pitts v. Cook, 5 Cash., 596; Barrow v. Barrow, 4 Kay & J., 409; s. C., 4 Jur. N. S., 1049.
    II. What kind of an estate did Wm. Miller, the grandson, acquire in the 80 acres? (a). In part by the devise of his grandfather; without such devise he could have no claim. (5). In part by the election of his grandmother; without her election to take under the will, the devise would have been inoperative, (e). In part by the effect of the statute of wills then in force upon these acts, which directs how wills shall be made and recorded. And so, in part, his title was acquired by operation of law.
    As to the distinction between legal and equitable estates, see Bouvier Law Dio. under title “legal estate.” If the distinction there made is correct, then by her election, even without the statute, the fee simple of Christina Miller in the eighty acres would have been turned into a life estate in her, with remainder in fee to her grandson, according to some of the best and recent authorities on this subject. Kennedy v. Mills, 13 Wend., 555-6; Birmingham v. Kerewan, 2 Sch. & Lef., 451; 2 Leon., 272; Cro. Eliz., 128; Weeks v. Patton, 18 Me., 42; Smith v. Smith, 14 Gray, 532; Howard v. GrettOn, 2 Swanston, 425, note a, towards end of note.
    What is title? It is not anywhere very fully defined, because it is a creature of law, and varies under various systems. But see 8 Greenleaf’s Cruise, 311, 312, § 2. What title is, may be better seen by considering how title is acquired. For this see 3 Cruise’s Dig., 317, 322; 4 Kent’s Com., 373; 6 Greenleafs Cruise, chap. 1, subject “Devises”; Id., chap. 2, § 2, p.. 16..-,
    III. If then the title of Wm. Miller was created by law and was recognizable in courts of law, was it not such a title as to make a record which falls within the rules of constructive notice? See Sections 16, 18, 24 and 33 of the Wills Act of 1840 ; 6 Ohio, 148; Bailey v. Bailey, 8 Ohio, 238, 247; 25 Ohio St., 265; Sheldon v. Newton, 30 Id., 500; Sehroyer v. Biehmond, 16 Id., 455 ; Bavis v. Bavis, 11 Id., 386; 9 Ohio, 96 ; Beeder v. Byan, 4 Id., 446;
    Our claim then is, that by the will of William Miller, confirmed by the election of Christina Miller, and entered of record, the legal estate in remainder in fee was vested in William Miller, plaintiff in error, and that as these acts were all of record, and within the probate jurisdiction of the court of common pleas when done, by virtue of the constitution and laws of Ohio, in force at the time, they were constructive notice to the whole world of his title, and forever binding, not only on Christina Miller, but upon all who claim under or in privity to her. And if Christina Miller could not have questioned the title of William Miller, either in a court of law or equity, after her election, so cannot her grantee, whether a purchaser or mortgagee, claiming under her.
    
      Bamsey Matthews, for defendant in error.
    1. There was no election by Mrs. Miller, and the will required none.
    The law requires that the intention of the testator to require such election shall be clear. Story’s Equity, Sec. 1089; Blake v. Bunbury, 1 Yes. Jr., 515; Banclyffe v. Parhyns, 6 Dow., 149; Billon v. Parker, 1 Swanst. R., 404, and note.
    It is by no means clear that William Miller intended to ' devise his wife’s property to his grandson. The reference to the home farm, containing about 200 acres, is not explicit enough for this purpose. Prima facie, all the bequests and. devises of a will are gifts.
    The provision made for Mrs. Miller in that will is expressly declared to be “ in lieu of dower.” It is an inflexible rule of construction that where a donation is made, in lieu of one thing, that there can be no election required between the donation and any other thing. Story’s Equity, Sec. 1090; JEastvt Coolc, 2 Yes., 23; Dillon v. Parker, 1 Swanst., 404, and note.
    2. If it should appear to this court that Mrs. Miller was called upon by this will to make an election, whether she would give up her fee simple estate for a life estate in her own property, no such election has been shown. The statutory election required of the widow is simply her election between the provision of the will and the provision of the law made for her in her husband’s estate. Carder v.' Fayette County, 16 Ohio St., 353.
    To make a binding election two things must concur.
    1st. There must be intention to .elect.
    2d. It must be shown that the party making the election was fully advised as to bis or her legal and equitable rights. Huston v. Cone, 24 Ohio 'St., 22; Spread v. Morgan, 11 H. L., 588; Padbury v. Clark., 2 Maen. & Gord., 298; Fitts v. Cook, 5 Cush., 596.
    3. As to notice :
    One about to purchase land in Ohio, whether by deed or mortgage, is required: 1st. To examine the record of deeds. He is not required to examine for conveyances made by any one save his own grantor. American note to Le Neve v. Le Neve, page 181, Leading Equity Cases, 3d American Ed.; Lieby v. Wolf, 10 Ohio, 33; Blake v. Craham, 6 Ohio St., 580; Murray v. Ballou, 1 Johnson Chan., 556; and the many authorities cited in Mr. Hare’s note to Le Neve v. Le Neve.
    
    2d. He is required to ascertain the name of the person in possession, “actual, unequivocal possession,” and to inquire what the rights of that person are.
    
      8d. He is required upon principles of general jurisprudence to examine the docket of pending suits in the county where the land lies, to see if suits are pending against the person in possession, or the person holding the legal title of record, affecting the title to the property.
    4th. By virtue of section 79 of the Code of Civil Procedure of Ohio, section 5,056 Revised Statutes, he is required to ascertain whether 'a final decree has been entered in any' action against his grantor; in the absence of statutory provision, he would not be required to make this examination. Wolsey v. Marl of Scarborough, 3 Atkins, 332; Turner v. Crebill, 1 Ohio, 373; Hilliard on Vendors, 147; and Fox v. Feeder, 28 Ohio State, 184.
    Having complied with these requirements he may pur- ' chase in absolute safety.
    In the present case the Union Central Company complied with all of them; it found Christina Miller in actual, unequivocal possession: it found her holding the legal title of record as an heir of her father; and by virtue of partition proceedings had between his heirs; there was no suit pending against her, and no final decree had been entered against her touching this property.
    The proceeding relied upon in this case as constituting notice was one which had no relation to this property, it had relation only to the disposition of the estate of William Miller, and was merely the admission to record of his individual will concerning that subject.
    If William Miller had executed and delivered a deed of Christina Miller’s property, and it had been placed oii record, a purchaser would not have been bound to take any notice of it. Blake v. Graham, 6 Ohio St., 580, and authorities cited. How, then, could he create a legal title to it, by a will disposing of his own estate ?
    Again, this proceeding for the probate of William Miller’s will was fully ended and determined in 1850; it could not be said to be a Us pendens in any sense after that date, if it had ever been such.
   Dickman, J.

The first question which naturally arises jpon the record is, Was Christina Miller so weak and imbecile that she was incapable of comprehending the transaction of executing the note and mortgage. It is quite manifest, that she was then laboring under the usual infirmities of old age — that time had somewhat impaired her physical strength, and that her mind had lost somewhat of its energy. But, upon a careful review of all the testimony, we are not prepared to say, that the district court erred in its conclusion that she was not incapacitated to make the note and mortgage at the time of their execution. She might not have been competent to profitably manage so large a sum of money as was loaned, and yet be sufficiently intelligent to know, that she had given her note and a mortgage to secure its payment, aiid that if not paid at maturity, the mortgaged property would be sold and so pass out of her hands. Whatever methods may have been resorted to by her relatives to induce her to incur the obligation, we do not find that any fraud or undue influence was practiced upon her by the insurance company or its agents; and we think, that the company received the note and mortgage without any notice of any disability on her part to execute the same.

It is claimed that the note given was usurious, by reason of its drawing interest at the rate of eight per cent, per annum payable semi-annually. This court has held in the case of Cook et al. v. Courtright, on error to the district court of Richland county, that under the act of May 4, 1869 (66 Ohio L., 91), a promissory note stipulating for the payment of the principal at a future time, with interest thereon at eight per cent, per annum payable semi-annually until paid, is not usurious. From that decision we find no reason to depart.

Other questions presented for the determination of the court, arise out of the election of the widow to take under the will of her husband. The testator devised and bequeathed to his wife in lieu of dower, the home farm on which he resided, containing about two hundred acres, with all the goods and chattels thereon, during her natural life, together with the income of a large trust fund. The home farm was devised — at her death — to the testator’s grandson, William Miller. The presumption under the statute would be, that this provision in favor of the testator’s wife Avas in lieu of dower and her distributive share of the personal estate, unless an intention to the contrary plainly appeared in the will. But, the testator fortified that presumption by using the unambiguous words, “in lieu of dower.”

At the date of the will, and at the time of her husband’s decease, Christina Miller owned in fee simple a tract of eighty acres of land inherited from her father, which had become so incorporated Avith the home farm, that its identity Avas lost except on a careful survey. The testator therefore had devised to her a life estate in her own land, Avith a remainder to his grandson.

In November, 1850, on the day of the probate of the Avill, the AvidoAV appeared in court, and elected to take under the will the provision made for her in lieu of dower. Up to the time of her death, she remained in the use and occupation of the home farm, enjoyed the income from the trust fund, and continued for nearly twenty years after her election fully satisfied Avith all the terms and provisions of the Avill. It is obvious in view .of Avell-established legal principles, that the relation of the widoAV to the tract of eighty acres, Avas not the same after her election as it was before. By the devise and her election under the will, her estate in the premises was, Ave are of opinion, converted into a life estate with remainder to the grandson.

The doctrine of election, as stated by an approved text Avriter, requires, that if a testator has affected to dispose of property which is not his oavii, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator's attempted disposition; but, if on the contrary he chooses to enforce his proprietary rights against the testator’s disposition, equity will sequester the property given to him', for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights. As said, too, by Welch, J., in Huston v. Cone, 24 Ohio St., 11: “It is a well-settled principle of equity, that where a will assumes to give to one of its beneficiaries property belonging to another person, for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will; and that he cannot have both.” See also, White v. Brokaw, 14 Ohio St., 339; Jennings v. Jennings, 21 Id., 56. So firm is the principle that one cannot claim both under the will and adversely to it, that in disposing of that which is not his own, it seems to be immaterial whether the testator is acquainted with his want of title, or supposes that he is exercising a > power of disposition that belongs to him. Whistler v. Webster, 2 Ves., Jr., 370.

The obligation imposed upon a party to choose between two inconsistent claims, in cases where it is the clear intention of the testator from whom he derives one, that he should not enjoy the benefits of both, rests upon the soundest principles of equity. Indeed, the doctrine of election is the peculiar subject of the jurisdiction of courts of equity. It is a creature of equity, although regulated by statute as to the time, place, manner, requisites and effect of the election. One of the main objects of the statute is to remove the fact of the widow’s election from the domain of uncertainty; and that she may act deliberately and understandingly, she is allowed one year after the probate of the will, within which 'to make her election. But the doctrine of election is none the less of equitable origin because under statutory regulation.

It is no exception to the equitable rule which we have been considering, that the devisee or legatee is the widow of the testator. In Allen v. Getz, 2 Penn. R., 310, after stating the rule, that the devisee who accepts a devise under a will by which the testator has devised the estate of such devisee to another person, thereby elects to give up all his right and title to such estate, the court says, that “ no reason can be assigned why the widow of the testator should be exempt from the operation of the rule. It is founded in great justice, for no one could well imagine that the testator would have devised or bequeathed such portion of his estate, even to his wife', if he had known that she would oppose his will in another part, by claiming and taking the part which he had thereby given to another.”

In the case of Tomlin v. Jayne, 14 B. Mon., 160, it was held, that although Tomlin had not ’the right of disposing by will of his wife’s interest in her father’s estate not reduced to possession, yet, as he did undertake to dispose of it by his will, in which he also gave his wife one half of his own personalty, a case was made for election by the wife. The wife, it was said, could not hold under the will what her husband had a right to dispose of, and at the same time hold independently of the will and against it, property which, although it was in fact hers and not her husband’s, he had expressly disposed of by his will.

In Cox v. Rogers, 77 Pa. St., 160, the testator provided, “ I do will to my son, his heirs and assigns, my farm, subject to my wife’s thirds.” The wife owned the farm. She accepted and retained a legacy of the personal property. It was held that she, and her. heirs after her death, were estopped from claiming the farm; and that the legal presumption was, that the wife knew that if she accepted the legacy, she would be estopped from claiming the farm as her own.

The principle is announced in Clay v. Hart, 7 Dana, 1, that where a testator devises a greater or other interest in his wife’s estate than he has, if she elects to abide by the will, her independent right to the property devised by it is thereby waived. In support of the same principle, see Reaves v. Garrett, 34 Ala., 558; Upshaw v. Upshaw, 2 Hen. & Mun., 381. These and other cases which might be cited are applications of the rule declared at an early date by Lord Chancellor Talbot, in Streatfield v. Streatfield (cases temp. Talbot, 176), “Where a man takes upon him to devise what he has no power over, upon a supposition that his will will be acquiesced under, this court compels the devisee, if he will take advantage of the will, to take entirely, but not partially under it; there being a tacit condition annexed to all devises of this nature, that the devisee do not disturb the disposition which the devisor hath made.”

Our attention however is called to the case of. Carder v. Com’rs. of Fayette county, 16 Ohio St., 353, in which it is said by Welch, J., “that the election of the widow to take under the will does not estop her from contesting the will, denying the validity of its devises, or setting up her claims as heir.” It may be conceded that the right to contest a will because of its invalidity, or to set up a claim as heir to yaroperty not embraced in the will, should not be taken away by the widow’s election; and yet, it may be unreasonable that the widow, in a case like the one at bar,'after electing to take the provision made for her out of her husband’s estate, should be permitted to thwart the testator’s intention, and disappoint other persons by claiming property, though her own, which the testator had devised to them. As well remarked by Mc’Ilvaine, J., in Bowen v. Bowen, 34 Ohio St., 164, “whether or not any other interest or claim” (besides dower) “which a widow may have in, or against the estate of'her husband, is satisfied by provisions in her favor in his will, must be determined not by the rule of the statute, but upon principles of reason and right which exist entirely independent of the statute.”

Holding as we do, that the election of Christina Miller to take under the will of her husband, devolved upon her grandson a right in remainder in the eighty acres of land, we are led to inquire, whether that right was a legal or equitable one. In our view, he acquired an equitable interest. If a testator assumes to dispose of the property of his devisee in favor of a third person, it is obvious, that not being the owner, he cannot transfer the legal interest in the property. The testator, William Miller, Sr., had no power of. testamentary disposition .over the separate estate of his wife. A devise by him of his wife’s property in express terms to his grandson, could not alone vest any interest. Without the supplementary act of the widow electing to take under the will, the devise to the grandson could not prove otherwise than nugatory. The rights which the grandson might acquire by virtue of the widow’s election, had their foundation in equitable principles. If there had been no statute regulating the widow’s election, the grandson, by virtue of Christina Miller’s election to accept the provision in lieu of dower, might have acquired the same property rights as upon a statutory election by the widow. The estate therefore of William Miller in the eighty acres depended not, under the will, primarily upon the operation of the statute, but upon the operation of equitable principles antecedent to the statute. By electing to take under the will, Christina Miller may have been equitably estopped from setting up her legal title as against her grandson, but, under the statute then in force, her election did not, we think, operate as a decree in chancery against her, for a conveyance to her grandson of the eighty acres, subject to her life estate.

But, while William Miller was entitled upon the death of his grandmother to an equitable estate in fee simple in the eighty acres in question, the insurance company, as mortgagee, stood in the position of a bona fide purchaser of the premises, for value, and without notice. It is conceded in the record that the company had no actual knowledge of the execution of the will of William Miller, Sr., or of the election of Christina Miller to take under the will, and we do not regard the company as chargeable with constructive notice of the grandson’s interest in remainder.

Doubtless, the probate of the will and the widow’s election to take under the same, were constructive notice to the company of the disposition of the testator’s estate, but not of the wife’s separate property. A purchaser from her of her land would not have been bound to take notice of a ■ deed of the same by another person, who was unauthorized to make the deed. The record or registry of a-deed is constructive notice only to those who claim through or under the grantor by whom such deed was executed. Blake v. Graham, 6 Ohio St., 580; Leiby v. Wolf, 10 Ohio, 83. And the owners of land cannot with any color of reason or authority, be required to watch the records to determine whether some one has without right made conveyances of their lands. The rule, which would protect a purchaser against the operation of a deed of his grantor’s property made by a stranger without authority, is not, we conceive, inapplicable to the case of a testator’s assuming to devise property to which he has no title. In either case, the purchaser cannot be chargeable with constructive notice of the unauthorized act.

At the date of the execution of the mortgage to the company, Christina Miller was in the actual undisputed possession of the mortgaged premises. The fact was well known, that she derived title to the land by descent from her father, and by virtue of partition proceedings had between his heirs. The registry of deeds showed that the land was unincumbered. There was no suit pending against her, and no unsatisfied judgment or decree existed against her, affecting her title to the land. Assuming, that the probate of her husband’s will would have been constructive notice of his devise of her land to another, if the same had been identified as hers, the will, from its want of such identification, would not constitute constructive notice to any innocent purchaser. For the .purpose of constructive notice to the mortgagee, the proceeding for the probate of the will of William Miller, Sr., and the widow’s election thereunder, cannot be regarded as lis pendens, nor operate as a judgment or decree as to Christina Miller.

After her election to take under the will, in consideration of one dollar and love and affection, she executed a rvarranty deed of the eighty acres to Jacob Fisher, her brother. Fisher’s deed — of which the company had no actual knowledge when the mortgage to it was executed — was not placed on record for more than two years after its date, and more than one year after the execution and record of the mortgage. Not having been recorded within six months, the deed was fraudulent as against the mortgage. The mortgage thus gained priority of the deed, and after condition broken, the title to the mortgaged premises, as between the parties, vested in the mortgagee. The mortgagee might then have maintained ejectment to recover possession of the premises. Heighway v. Pendleton, 15 Ohio, 785; Ely v. McGuire, 2 Id., 223; Allen v. Everly, 24 Ohio St., 97; Williams v. Englebrecht, 37 Id., 383.

The defendant in error being an innocent purchaser, for value, and without notice of William Miller’s equitable interest,, and its lien on'the mortgaged premises being first in order of priority, the judgment of the district court must be affirmed.

Judgment accordingly.  