
    Ogle v. Ogle.
    A vendor, supposing that a woman whose husband was not living with her, was unmarried, sold her a tract of land and took notes and a mortgage back for a part of the purchase money.
    In an action by an assignee of the notes, Held: The deed and void mortgage are ope transaction and subsequent purchasers, with notice, took title in trust for the payment of the mortgage notes.
    Appeal. Reserved in the District Court of Fulton County.
    The original action was brought in the Fulton Common Pleas by Alexander II. Ogle against Emeline Ogle and Joachim, her husband, Miles Hayes and wife, and John Plettner. Its object was to foreclose a separate mortgage given by Emeline to Feebacb to secure payment of nine promissory notes made by her to Feebach, and which had been duly assigned to the plaintiff. It was a mortgage back t.o secure payment of a part of the purchase money for same premises which Feebach had simultaneously conveyed to her. The petition did not admit that she was married at the time; but it claimed that if she were, the notes were a valid charge on the land, notwithstanding it had been conveyed by Emeline and her husband to Hayes, and by him to Plettner. Both Hayes and Plettner, when they respectively took title, had notice of Feebach’s claim and its character. Emeline, a married woman at the time, fraudulently represented to Feebach that she was unmarried, and he believed and relied on the statement. Answers were filed by Feebach and Plettner. The findings of the district court render further statement unnecessary. In the common pleas Plettner had judgment. In the district court, on appeal, the case was reserved to this court on these findings. They are,
    “ That on the 12th daj'- of April, A. D. 1876, the defendant, George Feebach, was the owner in fee simple of the real estate in the petition described, and conveyed the same to the defendant, Emeline Ogle, who then was and thence hitherto has continued to be, a married woman and the wife of the defendant, Joachim Ogle, who was then absent and not with his said wife, for the nominal consideration of twenty-five hundred dollars, of which one hundred dollars was afterwards remitted on settlement between said parties, and thirteen hundred dollars thereof was paid by the conveyance, by said Emeline Ogle to said Feebach, of said real estate in the city of Toledo, subject to'a mortgage lien and nominally placed at that value, and the remaining eleven hundred dollars was included in and constituted the consideration of the notes in the petition set forth, and was secured by a mortgage which said Emeline then executed to said Feebach upon the same real estate.
    “That said Emeline Ogle represented to said Feebach at the time he sold said real estate to her and received said notes and mortgage therefor, that she was a feme sole and ■had no husband, and said Eeebach believing and relying upon said representations, and not knowing nor having reason to know the falsity thereof, made said conveyance of said real estate and received therefor the notes and mortgage described in the petition of plaintiff, none of which were signed or executed by the husband of said Emeline, nor did said Feebach know of his existence.
    “ That on the 1st day of November, A. D. 1876, said Emeline Ogle and her husband, Joachim Ogle, joining, attempted to convey said real estate by a deed of that date to the defendant, Miles Hayes. And on the 29th day of May, 1877, said Emeline and Joachim, both joining, executed to said Hayes another deed conveying to him said real estate, and which last deed was in all respects properly executed. Both of said deeds contained general covenants of warranty, but the mortgage executed by said Emeline to said Feebach was especially excepted from said covenants in each of said deeds by a clause as follows, to wit:
    “ To have and to hold the same to the said Miles Hayes, his heirs and assigns forever, we hereby covenanting that the title so conveyed is clear, free, and unimcumbered, excepting a mortgage hereafter mentioned, and that we will warrant and defend the same against all claims whatsoever, excepting a certain mortgage executed by Emeline Ogle to George Feebach, on the 12th day of April, A. D. 1876, to secure the payment of eleven hundred dollars.”
    In August, A. D. 1878, the defendant, Flettner, was negotiating with said Hayes for the purchase of said real estate, when Feebach notified him through a third person not to purchase the same, for the plaintiff had a claim thereon, which he, plaintiff, would proceed to enforce at the next term of the court in Fulton county, and Plettner thereupon discontinued such negotiations till after said term, when no such proceedings having been commenced, on the 16th day of December, A. D. 1878, he purchased said real estate of Hayes for the nominal consideration of eight hundred dollars, which was its approximate cash value, and which was paid as follows: one hundred dollars by Plettner’s individual note to Hayes, of which thirty dollars was paid before the trial in the court below, but when, does not appear, and the balance has since been paid. Three hundred dollars by the assignment to Hayes of a conditional obligation due to Plettner from one Jefferson Beard, which was apparently secured by a mortgage which has since proved entirely worthless in consequence of a previous mortgage on the premises, which had been foreclosed but of which Plettner was ignorant, and four hundred dollars was paid by the sale and transfer to Hayes of a patent right in a certain territory.
    Hayes conveyed said real estate by a quit claim deed to Plettner, who knew of the existence of said mortgage to Feebach, but supposed it to be of no legal force or effect because it had been executed by a married woman.
    On the 20th day of January, A. d. 1877, said Feebach transferred said notes and mortgage executed by Emeline Ogle, to plaintiff, who afterwards commenced this action thereon. The defendant, Hayes, as a part of the purchase price of said real estate so conveyed to him, agreed to pay the mortgage executed to Feebach, and also before the conveyance by him to said Plettner, he negotiated with plaintiff for the payment of the same, but such'agreement and negotiation did not appear to be known to said Plettner except so far as it might be shown by the deed from Hayes to him, and as he may there be charged with such knowledge and by the other facts in the case.
    All such deeds and mortgages were forthwith after the execution thereof as aforesaid, respectively delivered to the recorder of said county of Fulton, for record, and by him immediately properly recorded in the respective records of mortgages and deeds in his office.
    When said notes and mortgages were assigned to plaintiff, he had no knowledge or notice of the fact that said Emeline Ogle was or had been a feme covert, or that other defenses existed to.the same.
    There was no evidence introduced of the existence of the patent mentioned by said Plettner, except his own testimony, and no evidence of its non-existence. At the date of the commencement of this action, the said Emeline Ogle was and ever since has continued to be insolvent.”
    
      C. H. Scribner,. with whom were Pratt f Bentley, for plaintiff.
    1. The original conveyance by Feebach to Emeline Ogle, and the mortgage back, constituted a single transaction. In legal effect it was the same as if there had b^en inserted in the deed a stipulation that the land was charged in the hands of the grantee with the payment of the unpaid purchase money. As between the vendor and the vendee it is immaterial whether the mortgage is a strictly legal instrument or not. The two instruments — the deed of conveyance on the one part and the mortgage deed upon the other— charged the lands in the hands of the purchaser with a liability for the unpaid consideration; and this charge may be enforced, as well against a purchaser with knowledge, as against the original grantee. Bedford v. Burton, 106 U. S., 338; Chilton v. Braiden, 2 Black. S. C. U. S., 458, 461; 1 Bishop on Married Women, 420, § 600.
    
      B. T. Geer and Bodge & Raymond, for Plettner.
    The mortgage of a married woman, her husband not joining, is a nullity. Rev. Stats., § 4107; Miller v. Hines, 13 Ohio St., 565; Foster v. Dennison, 9 Ohio, 121; Purcell v. Gorham, 17 Ohio, 105; Henry v. Henry, 27 Ohio St., 121. Such mortgage is not validated by any alleged fraud or misrepresentation. Concord Bank v. Bellis, 10 Cush., 276; Lowell v. Daniels, 2 Gray, 161; Innis v. Templeton, 95 Pa. St., 262; Morrison v. Wilson, 13 Cal., 494; Bank of Am. v. Banks, 101 U. S., 240; Miller v. Wetherby, 12 Iowa, 415.
   Martin, J.

Feebach’s mistake in taking the- void mortgage entitled him, as against Mrs. Ogle, to a rescission of the contract, to a vendor’s lien, or to assert a charge on the land as her separate estate. But we are not aware that either of these remedies is available to his assignee, the plaintiff, against subsequent purchasers. Obviously, he cannot rescind, and if he could his notes would be avoided, and he would take nothing. A vendor’s lien is not assignable. And it seems to us that the mere existence of the indebtedness which might, by proper steps, have been charged on the separate estate, created no lien, and cannot, therefore, entitle the creditor, as against subsequent purchasers, to charge it on the land. It had ceased to be separate estate. And there is here no equity of correction arising from a defective execution of a grant whereby the title failed to pass, and which would be enforceable against subsequent purchasers with notice. The mortgage, as a grant, is simply void and incapable of correction.

It is insisted, however, that, in equity, Mrs. Ogle became a trustee for Feebach for the payment of the notes. This view is supported by the opinion of an eminent author, who bases it on the ground that there was a failure of what was really contemplated by the parties as a consideration. .1 Bishop on Married Women, 600. It appears from the context that the author alludes to the general property of a married woman subject to marital rights at common law.

A grant of such property to the wife casts upon the husband an estate during the joint lives of himself and wife. He alone can accept the conveyance. If it is absolute and unconditional an acceptance is presumed. If it is clogged with a trust (or in any manner conditional) he is put to his election. If he reject it the contract is at once rescinded, and all parties are restored to their original position and rights. If he accept it, the premises granted, including his estate, are charged with the trust. The result in either case is accomplished by his own act. By acceptance, in a case like the present, he gives effect, for his own advantage, to her expressed intention. To hold otherwise would enable him, by his own voluntary act, to enjoy the fruits of his wife’s fraud. We think the opinion of the learned author is sound and consistent with established principles and analogies.

But under our statute the premises in question were the separate property of Mrs. Ogle. The statute gives her sole control over it, and the restraints imposed confer no estate on the husband. She has power to make certain contracts in respect to it,'and to chai’ge it withffhe payment of debts. The invalidity of the mortgage arises solely from her incapacity to make a separate grant. Other considerations affected her relation to her general property at common law. As to it she was incapacitated to contract. And to assume any validity in her mortgage back was to admit the momentary seizin of her husband with its legitimate consequences. We see nothing in the changed condition, in her seizin and powers under the statute, to relieve her from the relation of a trustee.

The deed and mortgage back are dependent parts of one transaction. They evidence an agreement not simply for a lien, but for a reconveyance — a perfect mortgage, with its incidents and cumulative remedies. By mere mistake on the part of Feebach, he accepted the mortgage, regular on its face, but void.

Notwithstanding he had a vendor’s lien and a right to charge the separate estate, there is no inconsistency in his having, and we think he was entitled to have, the ampler remedy of a trust assignable and enforceable against subsequent purchasers with notice. A recital in the deed to Hayes is a particular reference to the mortgage in which the notes are described as given for the purchase money. The case shows that Plettner also was fully notified. They successively bought with notice of plaintiff’s equity, and are bound by it precisely as was Mrs. Ogle.

Judgment for plaintiff.  