
    *Edward Cowles v. Henry Raguet, Charles McMicken, William K. Brown and others.
    A mortgagor may redeem, notwithstanding the consideration of the note to secure the payment of which the mortgage was executed, was illegal or contrary to the policy of the law.
    This is a bill in chancery, reserved in Hamilton county, and eomes before the court by appeal from the superior court of Cincinnati.
    The original bill was filed on February 17, 1841, in which the complainant states that in the year 1839, he purchased a certain lot in Cincinnati, under a decree of said superior court, upon a bill by him filed, to foreclose a mortgage on the same lot, executed by Peter Roll, one of the defendants, in 1835. That the money bid by him for said lot exceeded, by about fifteen hundred dollars, the amount of the decree. That this surplus is claimed by Roll, the mortgager' by the defendant McMickon, in consequence of an assignment to him of an older mortgage on the same land, given by Roll to the defendant Raguet, and by the other defendants claiming to be judgment creditors of Raguet, and, as such, to have a lien upon the lánd mortgaged.
    The prayer of the bill is, that the defendants may be compelled to interplead ; and in the event that the court shall be of opinion that the mortgage of Raguet is a lien upon the land, then that the complainant may be permitted to redeem.
    The facts of the case as they appear from the bill, answers, exhibits, and testimony, are substantially these. In the summer, of 1826, the defendant made to Raguet two promissory notes for' 8500 each, and, to secure the payment, executed two mortgages on. tho promises in controversy. The *consideration for those notes is said to have been, in part at least, an engagement, on the part of Raguet, not to prosecute the son of Roll, who had been by him accused of larceny.
    On November 27, 1832, Raguet, being in failing circumstances, made a general assignment to the defendant McMicken, for tho use and benefit of his creditors. In this assignment was included ehoses in action, as well as all mortgages or judgments, and tho “ claim against Peter Roll,” then in controversy.
    Afterward Raguet commenced an action of ejectment for the lot in controversy, upon his mortgage, and at the December term of this court, 1836, a judgment was rendered in his favor. McMicken as the assignee of Raguet, subsequently obtained possession of a portion of the mortgaged premises, and enjoyed the same for some twelve or eighteen months, or more.
    The defendants Wood and Abbot, at the February term of the court of common pleas of Hamilton county, 1833, recovered a judgment against Raguet, which was levied upon the interest of. Raguet in the mortgaged premises on April 24, 1840.
    The defendants, Brown, Chase & Co, recovered a like judgmont'against Raguet at the August term of the same court, 1833, and took out execution, which was levied on the same interest, on April 27, 1840.
    In 1835, Roll executed a mortgage on the same premises to the complainant Cowles, which was subsequently foreclosed, and the premises sold as stated in the bill.
    In February 1841, the property was also sold on a vendí, issued upon the judgment of Brown, Chase & Co., and sale confirmed.
    Henry Starr, for complainants, and for defendants, Peter Roll, and Wood and Abbot.
    *If tho judgment creditors of Raguet can sell the lot on execution as his property, the complainant is entitled to a decree quieting his title against them, by paying to them the amount of the mortgages, he having no estate in the lot but what is vested in him by the mortgages and the judgment in ejectment under them ; and if those judgment creditors who have sold a part of the lot, have appealed, he has a right to a decree that they give up their title, and that the deed made them bjT the sheriff bo canceled.
    If the judgment creditors have no such right, but Raguet has a right to take out a writ of possesssion on his judgment in ejectment against Roll, then the complainant is entitled to a decree quieting his title against such a proceeding, by paying to him the amount of the mortgages, because he could only hold possession till the rents or value of the possession should equal the mortgages.
    If McMicken can take out a writ of possession in the name of Raguet for his benefit as assignee, the complainant is entitled to a like decree against him ; 2 Paige Ch. 200; 4 Paige Ch. 384; 2 Story’s Eq. 127; Story’s Eq. PL 241.
    If any of the defendants can avail themselves of the mortgages and the judgment in ejectment under them, in any way or for any purposes whatever, to the prejudice of the complainant, he is entitled to a decree against Roll, declaring his right to apply the surplus to their payment. In that case, they aro a subsisting incumbrance on the lot, created by Roll himself, prior to his mortgage to the complainant. The right to make this application of the surplus is among the equities between mortgagor and mortgagee. The mortgages being a prior lien on the lot, the defendants have a lien on the money arising from the sale of it to the complainant under his decree, and the court will apply it to the discharge of the lion. If there be a surplus arising from the sale of mortgaged promises after the payment of the mortgage debt, it is every day’s practice to apply it to the payment of taxes or any other charge on the land, if properly before the court, rather than order it to be paid to the ^mortgagor. He has no right to it till all prior incumbrances created by him are extinguished. The purchaser has a right to a clear title as against the acts of the mortgagor. If Roll can take the surplus, and the mortgages at the same time be enforced against the lot, the absurd consequence follows that when he mortgaged the lot to the complainant, he did not convey all his estate therein. The point is too clear for discussion.
    The complainant has a right to a decree against McMicken for the rents of the house since he took possession on July 15,1840, at the annual rent of $300, payable semi-annually, and that he give up the possession.
    The. house was under lease at the time upon those terms, and it is proved to be a fair rent. No matter what rents McMicken has actually received, he is liable to pay the rent at the time he so unjustly and unnecessarily (oven for bis own security, if he could use the judgment in ejectment for his benefit), usurped the possession. It might be recovered at law, but the court, having possession of the case for purposes strictly cognizable in equity, will decide the whole matter and do complete justice. 1 Story’s Eq. 187, 188; 10 Johns. 590; 7 Crunch, 69.
    The judgment creditors of Raguet can not sell the lot on execution against him. His estato is that of the mortgagee onlyq not in possession ; and were he in possession, the complainant would have a right to redeem. The judgment in ejectment in favor of Raguet, under the mortgages, does not make the lot liable to be sold under execution against him. Mortgaged premises can not be sold on execution against the mortgagee, though the debt be due and the estate has become absolute at law.
    Previous to the sale of the lot to the complainant, it might have been sold on execution against Roll. It is the settled doctrine of this court, that land mortgaged may be sold on execution against the mortgagor. 2 Ohio, 223, 224; 3 lb. 21; 10 lb. 71; Wright, 251.
    It could not be the subject of execution against mortgagor and mortgagee at the same time.
    *Again, the judgment creditors admit that the mortgages were .given upon an illegal consideration, and that Raguet acquired his estate in the lpt (whatever it be) by committing an act against the policy of the law. From a transaction whose character is thus admitted*, they can derive no advantage or right to sell the lot as the'property of Raguet.
    The court will not make it a condition for quieting tbo title of the .complainant that he pay the mortgages to Raguet or to Mc-Micken, his assignee. It is perfectly manifest he has a right to a perpetual injunction to restrain them in the use of the judgment in ejectment and the mortgages to the disturbance of his title, on some terms. It is equally clear the court can not decree him to pay the mortgages to them, because it would be giving them the “fruits of iniquity.” It would bo paying Raguet to stiñe a criminal prosecution against the son of the said Roll, for a theft with which he charged him; the precise purpose for which they were given. For the same reason that the court would not allow him to recover the money at law which the mortgages were given to secure, it will not allow him to take the same money in another form as a sine qua non of an injunction to restrain their use. 4 Ohio, 400 ; 7 Ib. pt. 1, 76.
    As to McMicken, he has no rights which Raguet had not, even if he has the same. He stands in his shoes. The assignee of a mortgage takes it subject to all equities in the hands of the mortgagee, so far as the parties to it are concerned. 2 Cow. 252; 2 Johns. Ch. 441.
    As the mortgages secured no debt which Roll was bound to pay, they did not pass by the assignment. The assignment of a mortgage without the debt is a nullity. 19 Johns. 325.
    A mortgage is an incident of a debt, and if-the debt fails the mortgage fails. Whatever extinguishes a debt, extinguishes the mortgage. li Mortgages are inseparable' from the debts to which they relate. They follow them as the shadow follows the substance.” Burnet’s opinion, 2 Ohio, 389. A release of the debt is a release of the mortgage. If the debt be *barred by the statute of limitations, there can be no' foreclosure in equity. In fine, whatever defeats the debt defeats the mortgage. 1 Johns. 550; 4 lb. 41; 11 lb. 534; 1 Cow. 159; 1 Bibb, 526; 2 A. K. Mar. 109 ; Adams on Eject. 285, n.
    The object of the assignment was to create a fund in the hands of McMicken to pay the creditors of Raguet. If no debt was secured by the mortgages, they did not come within the object and scope of the assignment. No debt being assigned, the right of entry under the judgment in ejectment, which was not rendered till more than four years after the assignment, did not pass by it to McMicken. He had notice of the consideration of the 'mortgages. The assignment says they were then in litigation. The decision in Roll v. Raguet, 4 Ohio, 400, was mado before.
    I also appear for the defendant Roll, and insist that it is competent for the court to decree in his favor on his cross-bill, that all parties be enjoined from using the judgment in ejectment and the mortgages, and this by reason of the consideration for which they were given. He has an interest in this controversy. If they can not be enforced against the lot, ho has a right to the surplus; if they can be, ho has no right to it. It may be said that as Raguet has recovered in ejectment against Roll by virtue of the mortgages, notwithstanding their consideration, there is no arm of the law to which he can appeal to arrest a writ of possession, and protect himself from their full effect and operation. This position is not a necessary consequence of that recovery. The decision in that case assumes that the mortgages being an executed contract, their consideration could not be inquired into. Not so in this case, their consideration is admitted. But if not admitted, Eoll has a right to an injunction upon the well-established principles of equity. Situated as the parties are in relation to the lot, the judgment in ejectment has to be exchanged for money if it can be enforced against it.
    The complainant has a right to be quieted in his title against *the judgment, if it can be enforced by paying it to whomsoever it belongs. For this purpose he has a right to apply the surplus. The question, then, is between giving the money to Eaguet and paying him his price for suppressing a criminal prosecution, or withholding it altogether. Equity will therefore interfere, not for the direct purpose of relieving Eoll from the effects of an illegal transaction in which he has been concerned, but to prevent Eaguet from receiving the fruits of iniquity admitted to be such. The application of this principle has indeed the indirect effect of benefiting Eoll, by securing to him the surplus, which otherwise he would have to part with. But this is nothing more than the advantage which every one derives from being allowed to avoid his contract by pleading its illegality.
    It is one of the attributes of a court of equity to decree the cancellation of deeds and other securities given for unlawful pur- ' poses.
    It was competent for Eoll at any time after the execution of the mortgages to file his bill in equity, alleging and proving their consideration, to obtain a decree declaring their cancellation and ordering them to be given up. Such a decree would have been granted, especially if Eaguet had answered admitting the consideration. The relief would have been afforded upon the principle of quia timet, if upon no other. The right to enjoin the judgment in ejectment rests upon the same principle. He can not be met by the maxim in pari delicto, etc. Between particeps criminis, the law not unfrequently discriminates and assists the least guilty. The maxim that in pari delicto melior est conditio defendentis, does not always prevail. 1 Brown’s Ch. 543, n.
    “ It operates only where the refusal of the courts to aid either party frustrates the object of the transaction.” If it be necessary to discountenance such a transaction, equity will relieve against it, though both parties be in pari delioto, Doug. 670, n.; Cowper, 270, 790; 4 Rand. 378.
    Eden on Injunctions, 16, speaking of securities given *to compound felonies and for other unlawful purposes, says : “ A question frequently arises in these cases, and one which has not yet been completely and satisfactorily discussed, viz: to what extent a court of equity will give assistance to one who is particeps criminis to an illegal transaction. .
    Judge Story, in discussing the plonáry jurisdiction which courts oí equity are accustomed to administer in relation to constructive frauds, and their power to decree the cancellation of instruments, in vol. 1, p. 291, says, “Agreements founded upon the suppression of-criminal prosecutions, fall under the same consideration. They have a manifest tendency to subvert public justice.”
    It may be laid down as a general rule, that whenever a deed or other instrument would be void at law by reason' of the illegal purpose for which it was given, especially if its object be to obr struct the course of public justice, equity will decree it to be can-celled and given up, unless the party seeking relief be solely guilty, or has equally participated in the illegal transaction, so that, by sustaining him, it defeats, rather than promotes, the policy of the law. 1 Story’s Eq. 261, 300; 2 Story’s Eq. 8, 9, 10; Fonbl. on Eq., bk. 1, ch. 4, sec. 4, notes; Newl, on Con., ch. 8, p. 158; 5 Ves. 286 ; 7 Ves. 3; 13 Ves. 581; 3 P. Wms. 391; 1 Brown Ch. 543; 3 Burr. 1508; 2 Yerg. 524 ; 10 Yerg. 59,
    Chan. Kent, in Hamilton v. Cummins, 1 Johns. Ch.522, recognizes as correct the remark of counsel in French V. Connelly, 2 Anst. 454, that it is every day’s practice to order instruments to be delivered up, of which a bad use might be attempted at law, although they would not even there entitle the holders to recover. Ho adds, it is indeed not very apparent why a doubt could have been started in some of these cases as to the general jurisdiction of the courts, when we consider the uniform tenor and language of the more ancient decisions, and which do not -appear to have turned upon the distinction whether the instruments were or were not void at law.
    All contracts, agreements, or promises, whose consideration is*illcgal, against public policy or good morals, are void, and will not be eniorced by courts of justice, whatever form they asumo. 6 Ohio, 442; 2 Kent, 466; Chit, on Con. 657, 725,
    
      Cases collected by Mr. Walker, in his argument (appendix), in the case of Groves v. Slaughter, 15 Peters, 440, appendix, 20.
    The correctness of the decision in the ejectment suit of Raguet v. Roll, 7 Ohio, 76, may well be questioned. With much deference to the court, I think it is not law; and were it necessary to tho maintenance of the rights of Roll in this case, it might be shown, I think, by process of reasoning, little less conclusive than a mathematical demonstration. The court assumes that a mortgage is an executed contract; that is, the delivery of the mortgage vests the estate in the mortgagee. Does it therefore follow that tho guilty party is entitled to the aid of tho law to get possession of the mortgaged premises? Suppose the defeasance of a mortgage be to perform some illegal act, it is as much an executed contract as a mortgage whose condition is to pay money. According to Lord Coke, if a man made a feoffment upon condition that the feoffee shall kill John Stiles, tho estate is absolute, and the condition void. Coke Lit. 206, b.
    
    No matter whether tho illegal act, which is the condition of the conveyance, is to be performed by mortgagor or mortgagee. Neither is it material that it should appear on the face of the mortgage. It may always bo shown, and, when shown, the effect is the same. No form of contracting shall escape the search of the law, when the law proh ibits the making of tho cobtract.' 2 Wilson, 349.
    If the decision bo law, the most nefarious transactions maybe concealed under cover of a mortgage, and the policy of the law defeated.
    In the decision referred to, the court observe, although a strong disposition existed once to treat a mortgage as a mere chose in action ; and, although individual judges were heard to *de~ claro that the money was tho principal, and the land only the incident, and whatever would.carry the money, would convey the land, yet such is not now supposed to be the law. A mortgage is in reality an actual payment of the debt, as well as an actual transfer of the land.
    This is not tho.language of tho law, as it seems to me, or of this court, in other cases, as to the nature of a mortgage. 8 Ohio, 23; 2 Ohio, 225, 389, 390; Wright, 251; 4 Johns. 43.
    A mortgage is a chattel interest, a mere security for a debt. This seems to be the view taken of it in the books. 11 Johns. 533; 15 Johns. 319; 6 Johns. 290; 16 Johns. 254; 2 Cow. 195 ; 5 Cow. 202; 1 Cow. 122 ; 18 Johns, 110.
    
      If the judgment creditors of Raguet have a right to sell the lot on execution, the defendants, Richard D. Wood and William L. Abbott, for whom I also appear, have the preference by reason of the bill in chancéry, filed by them, to subject the judgment in ejectment tothesatisfaction of their judgment against Raguet, and the levy of their execution on the lot, April 24, 1840. They can not be defeated in this preference because the other judgment creditors levied three days before. Those creditors had knowledge of the bill filed by them. Equity will not permit them to gain an advantage under the circumstances disclosed. It is not a case for the application of section 4 of the act relating to judgments and executions. But if Wood and Abbott had not the preference, there is equality of right among the judgment creditors.
    It is deemed, however, unnecessary to examine the respective claims of the judgment creditors, inasmuch as Wood and Abbott and McMicken only have appealed from the decree of the court below. Their separate appeals, and each for themselves only, do not appeal the whole case.
    The defendants have no interest in common. Their claims are altogether antagonistic. Wright, 359, 599; Ohio, 516.
    ^Thomas J. Strait, tor the defendant McMicken :
    The object of the complainant is to compel the defendants, Mc-Micken, Peter Roll, and the creditors of Henry Raguet, to interplead in relation to $1,490, which he holds as a surplus on the sale of certain promises in Cincinnati, on a mortgage given by Peter Roll to him, subsequent to two mortgages given by said Roll to Henry Raguet, well known to this court, and on which said Raguet recovered in ejectment in this court, at the April term, 1837, the principle upon which the recovery was had, having been settled in bank previous. See 7 Ohio, 70, pt. 2.
    This argument is made for McMicken, and before I proceed, I must remark that he does not claim the surplus ; nor do I see at present why Peter Roll is not entitled to said surplus.
    McMicken claims all the title and interest that was in Henry Raguet, by virtue of the mortgages, and the judgment in ejéctment thereon, and that he is in possession of part, and has good right to the possession of the remainder of the same.
    He claims that, if any doubts could now arise, they are dispelled, and the matter is renderod certain by the adjudication and decree of the Supreme Court, in the case of the present complainant against said Peter Roll himself, and Wood and Abbott, referred to in his answer, and which resulted in the sale of said premises, by decree of said court, subject to the right of McMicken, under said Raguet, mortgages and judgment in ejectment, and which sale produced the surplus now sought to be applied to extinguish Mc-Micken’s claim. In that case Roll was made defendant, and he set up his right to have said mortgages and judgment abrogated, because this court had previously decided that Raguet (and of course McMickin who claimed under him) could not enforce the debt secured by said mortgages, inasmuch as part of the consideration was illegal.
    McMicken set up his right by virtue of the assignment from Raguet, and Wood and Abbott set up their right to the same as judgment creditors of Raguet.
    *Tho court decreed that McMicken was the owner of said mortgages, and judgment thereon, and that the sale must be made subject to that ownership.
    See McMicken’s answer, and the paper accompanying the same, which is a copy of the decree, so far as it is connected with the Raguet mortgages, and which is agreed by all the parties to be taken in lieu of the record. But whether or not McMicken’s answer sets up said decree and states what it is, his answer must be taken as true, as it is not replied to.
    Besides, the complainant’s title and right to relibf is under and by virtue of this decree. The surplus money is produced by a sale under this decree, which necessarily is a part of his case, and must be examined by the court.
    This decree is unappealed from, and certainly does settle the rights of all parties thereto. The creditors of Raguet, represented by Mr. Fox, are the only persons parties to the suit, that are not bound by said decree. The sale was directed to be made subject to McMickon’s right of entry under said mortgages and judgment. The complainant did purchase the same subject to said right. The court did refuse to abrogate said "right, and clear away the incumbrance, either in favor of Roll or Cowles.
    How can Cowles then ask to have his title quieted as against these incumbrances, when he holds subject to them, and they are an exception in his title paramount by said decree to his interest?
    How can he ask to appropriate an overplus of money to the ex-tinguishment of an incumbrance recognized by the decree under which he claims title as paramount, and subject to which he purchased ?
    The complainant must have purchased the premises at a sum much less than their whole value; because by the order of sale the purchaser, had to look to the satisfaction and extinguishment of said incumbrances. With what justice can he withhold the surplus from Roll, who was the judgment debtor, or have these incumbrances extinguished, and his title quieted against them?
    *Or what right has Roll to have these incumbrances cleared from the premises? He has no longer any interest therein; he does not claim anything therefrom. It is all the same to him whether Cowles holds the title subject to, or clear of, said incumbrances. The surplus money is no way connected with them, in point of justice or law, though the complainant naturally seeking his interest, seeks to connect them.
    I hold the surplus ought to belong to Roll; that the complainant, and whoever is entitled to the interest in the Raguet mortgages must settle that among themselves, or seek the aid of the court in that particular.
    Thus I am brought to another point.
    What are the interests of other persons under these mortgages and judgment?
    Wood and Abbott’s claim, as creditors, is settled by said decree against them. The only reservation, as to them, was a suit in chancery, then pending in the court of common pleas, in their favor against said Roll, McMicken, and Raguet. That suit, in the Supreme Court, was settled against them long since, which ends their claim.
    The other creditors of Raguet claim by a levy and sale of said premises by execution, on judgments of subsequent date to McMieken’s assignment, and with a full knowledge of the same. To sustain their title, the court see at once that, the interest in said Raguet must have been such as would pass by sale on execution ; or, in other words, a fee which I think the court would hardly be willing to admit.
    Whether a fee or not, McMicken’s deed of assignment covers the whole interest previous to their judgments. For his deed is well executed, to pass the fee, and is recorded. It is acknowledged beforo two witnesses and a justice of the peace, and the description of the premises is sufficient to pass the fee. It is this : “Miso, all mortgages, as well as my claim against Peter Boll, now in suit.” The action of ejectment on said mortgages was then pending in the Supremo Court, and I believe it is well settled, that any reference in a deed to other deeds, papers, or suits, wherein the description ‘is perfect, is sufficient.
    *If this deed does not pass the fee, and it should be held that Raguet’s interest was a fee; yet McMicken, by said deed, would have the superior equity, and the other creditors of Raguet, having nothing of the same, could hold nothing but the strict naked title, which, in equity, they would hold for the benefit of McMicken and this court, the proper tribunal, to’ decree accordingly.
    If is said, however, that no parties ar'e before the court on the appeal, but the complainant, Roll,' Wood and Abbott, and Mc-Micken, If so, of coui'se no claim on their behalf can bo set up.
    This is the third suit in chancery brought by Mr. Starr, in favor of some one setting up principally the same matter, in which Roll, Raguet, and McMicken have been parties, and, as usual, detailing the history of the three suits of Raguet v. Roll, founded upon said mortgages, and at all times claiming that the debt was extinguished, and insisting that the mortgages wore of course gone with the debt. All but the present suit have been settled against this proposition. How this will be settled remains to be known.
    The idea has generally prevailed that the debt, or consideration upon which said mortgages were given, has been extinguished by the decisions: first, in 4Ohio, 418 ; secondly, in 7 Ohio, 76, pt. 1. Without reflection, and an examination of the principles upon which said decisions were made, a person would be led to that conclusion (though a very erroneous one).
    To my mind a clearer proposition never presented itself, than that the considerations of said mortgages are not extinguished by said decisions. The languago of the court, in both cases, is too clear to be misunderstood. He that can run may read and understand.
    The question in said cases was, whether a part of the consideration was not illegal; and, if so, it tainted the whole consideration, as it could not be divided ; and that it was against policy to aid a party in enforcing a contract, where its consideration, was in wholo or part illegal.
    
      *Tho court did not undertake to decide that there was no consideration; but that, inasmuch as the mortgages were not only given to secure the payment of the stolon property, but as an inducement to Roll to secure the payment of the property so stolen by his son, Raguet, the mortgagee, promised to suppress and stifle the prosecution for the theft against his son. °As the mortgages would not have been executed by Roll without this promise, it formed part of the consideration, and was against public policy to enforce; but the real consideration or debt, is the same as if those decisions had not been made.
    Those decisions extinguish the remedy to recover the debt, or real consideration, and not the consideration itself. The language of the court, in 7 Ohio, is this: “The parties are to be left precisely where they were found. The law lends no aid to either plaintiff, or defendant. The plaintiff may possess his mortgage; he may receive the money in its condition secured, but he must do so without the aid of this court.”
    In the case in 4 Ohio, the court uses this language: “As between the parties the defense sot up may not be very honest; that the objection that a contract is immoral or illegal, as between plaintiff or defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed. It is founded on general principles of policy. If the agreement be executed, the court will not rescind, it; if executory, the court will not aid in its execution. Afterward, in the ejectment, the court decides that the mortgage passes the legal title, and the mortgagee is entitled to possession under it. So far as the title is concerned, it is an executed contract, and they can not rescind it.
    The mortgagee being then in possession, or in right to the possession, by virtue of the mortgage and judgment, nothing remains in fieri, the aid of the court is not asked in executing the contract; an d the necessary result is, by the decision referred to, that neither Roll, nor any one claiming under him, can have the contract rescinded, or disturb the mortgagee in his possession, without first paying the money mentioned in the condition. *Ho thus gets his money, without the aid of the court, precisely as the court say ho may, in 7 Ohio, pt. 2, 78.
    Why is this suit brought, unless some relief is sought, or noces-sary, against McMieken, to prevent him from enjoying the promises, or unless the complainant asks to redeem by paying tho money due by the condition?
    The complainant claims under Roll, and can ask no more than he. It certainly will not be pretended that Roll could have the contract rescinded, because tho consideration is illegal. When Roll asks such aid of 1;he court, he is in precisely the same situation as Raguet, in the cases referred to, where he asked the court to execute the contract and compel Roll to pay the money, and they refuse,
    It is admitted that McMicken stands in the place of Raguet, as between tho complainant Roll and himself, and so does the complainant stand in tho place of Roll. Insomuch that the matter between Cowles and McMicken must be settled as between Raguet and Roll.
    The result is, that McMicken, as assignee of Raguet, is entitled to the possession — unless Cowles asks to redeem, on payment to him of the money in the condition; and Roll is entitled to tho surplus which McMicken does not claim.
    It is said Cowles has the right to apply this surplus to any prior incumbrance in the way of mortgages, taxes, judgments, etc.; that it is the every-day practice. Exactly so. In an ordinary case he would have that right; but in this case, the decree in the superior court excludes him from that. He did not purchase and pay the full price of the land with a view of appropriating tho money to extinguishing this incumbrance ; but he purchased subject to it. But if he had purchased the whole interest subject to nothing, then the first money arising from the sale should be applied to the incumbrance, because it is elder than his.
    The complainant seems to supipose the Raguet incumbrance junior, if we may judge from the view he takes of the surplus. For it is junior liens that claim surplus money on sales. The elder lien has nothing to do with the surpilus. It is entitled to *the money necessary for its satisfaction, if so much is made. If not, then so far as it will extend.
    Suppose, in conclusion, I take another view of this case. Tho mortgages pass the legal title to Raguet (indisputable). The condition is said tobe void because illegal. The mortgage is to be void on the performance of the condition, but the condition can not be performed because illegal. The mortgage deed, then, is stripped of the condition, and left a simpile deed, convoying tho fee. This result is a necessary consequence of the positions taken by comrplainant and by Roll, and tend greatly to McMicken’s intercst to have the matter thus settled; but I apprehend the court would hardly go this far. They would rather say the condition is not void; though they would not aid either party in enforcing it.
    J. T. Crapsey, for the defendant, Roll, and Charles Fox, for the defendants, Brown, Chase & Co., also submitted arguments.
   Hitchcock, J.

The facts and circumstances connected with this case are not new to the court, at least those which may be considered as the leading ones. They have been repeatedly presented to us, have been as often passed upon, but the controversy does not as yet seem to have been closed.

Before proceeding to the consideration of the particular questions arising in this case, it may be well to ascertain what has been the previous action of the court. Previous to the December term, 1831, Raguet commenced a suit against Roll, upon the notes secured by the mortgage, referred to in the statement of the case. This suit was commenced in the court of common pleas of Hamilton county. The defendant pleaded in bar, that before and at the time of the commencement, Charles Roll, the son of the defendant. was suspected and accused by Raguet of having stolen his goods and chattels in Cincinnati ; that Raguet was about to institute a criminal prosecution against Charles, for the theft, and that the consideration for which the note was given, was a promise or engagement on the part of Raguet that he would refrain and desist from instituting %ueh criminal prosecution. To this plea there was a general demurrer. The court of common pleas sustained the demurrer and rendered a judgment against Roll for the amount of the notes.

To rovei’se this judgment, a writ of error was sued out, and the case came on for bearing at the aforesaid December term of this court, 1831. By the decision of the court, the judgment of the court of common pleas was reversed, upon, the principle that ^vhenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them. If the agreement be executed, the court will not rescind it; if executory, the court will not aid in it's execution. This case is reported at length in 5 Ohio, 400.

Raguet then commenced a suit, by scire facias, upon the mortgage, under the law then in force, to enforce payment by the sale of the mortgaged premises. A plea substantially the same as that interposed in the action upon the notes, was filed; and, upon trial, they jury found the facts as stated in the plea. A motion was made for a new trial, which the court overruled, sustaining the decision in the former case. 7 Ohio, 76, pt. 1.

Raguet then commenced an action of ejectment upon the mortgage, and this came before the court at the December term, 1836. Roll attempted to pet up the same defense as in the former cases, but it was not allowed by the court; the court holding that a mortgage was not an executory, but an executed contract; and, that as the court would not aid in carrying into effect a contract of the former character, so neither would it aid in avoiding or rescinding a contract of the latter character. 7 Ohio, 70, pt. 2.

What then is the situation, at this time, of the original parties to this contract? The fee of the-land is vested in Raguet or those claiming under him; and, by execution upon the judgment in ejectment, he may at any moment be put into the possession.

This judgment can not be enjoined, because, by ordering *an injunction, the court would be doing, indirectly, what it has refused to do directly. It would in effect amount to the rescission by a judicial tribunal of an executed contract, the consideration of which was against public policy, and which would bo contrary to the opinion of the court, as expressed in the case already cited from 4 Ohio.

Now what is the case before the court? The interest of Roll in the lot of ground was transferred to the complainant by judicial sale in 1839. He has in his hands about $1,500, which belongs to Roll, unless the same is necessary to satisfy prior incumbrances. The complainant prays the court, in the event the mortgage of Raguet is hold to be an incumbrance upon the land, to allow him to redeem; and he prays further that the funds now in his hands may bo applied to that purpose.

The court have already decided, not only that the mortgage is an incumbrance, but have sustained an action of ejectment in favor of the mortgagee, for the recovery of the possession of the mortgaged premises; and as already remarked, the mortgagee may, at any moment, through the instrumentality of the proper writ of execution, acquire the possession. The legal title is vested in the mortgage, but the deed under which he claims, and by virtue of which the title is vested in him, is subject to a condition that the same shall be void, upon the payment of a certain sum of money by the mortgagor. Now there is nothing in this condition requiring of the mortgagor to perform an impossible, immoral, or illegal act. If such were the fact, the condition would be void and the deed absolute. But it is not so. It is a simple condition for the payment of money.

But it may be said that the original consideration for the promise to pay this money was an illegal consideration. Be it so. Still the person to whom the promise was made, can not be permitted to set this up to destroy the effect of a condition inserted in the deed, executed to secure the performance of that promise. When the mortgagee was prosecuting an ejectment upon his deed, we would not and did not permit the mortgagor *to avoid that deed by proving that the consideration was illegal. And now, when the mortgagor comes to redeem, shall we permit the mort-. gagee to defeat that condition, by proving that the consideration for the promise set forth therein was illegal ? This' would not seem to comport with even-handed justice. It would havo been honest in Roll to have performed this condition by the payment of the monejL It would be honest in the complainant to pay it; and wo think he has a right to do it, and thereby redeem the land from the effect of the mortgage.

But, in this case, the mortgagee does not object to the redemption. The objection comes, so far as there is any, from the mortgagor himself. He claims to be discharged from the performance of the condition, and still to retain the land. He seeks to induce this court to do indirectly what it would not do directly. In this aspect of the case, it is nothing more nor less than an attempt to obtain an injunction against the judgment in ejectment. Tuis can not be done. The mortgagor has conveyed this land by a deed duly executed, subject nevertheless to a condition. If he would retain the land, he must perform that condition.

But it is insisted by the counsel of Roll, that admitting the right of the complainant to redeem, still that the surplus money in his hands can not be applied to this object, because, as they say, he purchased the land subject to the mortgage of Raguet. The fact appears to be this: In the decree in the case of Cowfes against Roll and others, under which the complainant purchased, the court, although they ordered a sale, did not undertake to decide the validity oí Raguet’s mortgage. Of course that sale must be subject to this incumbrance. But still the land could not be, and was not sold for any less sum. The law required that it should. be sold for at least two-thirds of the appraised value. It was so sold. The laud itself for its full value; not the land reduced in price in consequence of Eaguet’s mortgage. Under these circumstances, it seems equitable to the court that this surplus should be applied, first, to remove *the incumbrance of the mortgage now in controversy. If anything remains, it must be paid to Boll.

The next question is as to which of the defendants is entitled to the money to be paid for the redemption of this mortgage. McMickon claims as the assignee of Eaguet, by deed executed in 1832; Wood and Abbott, and Brown, Chase & Co., as judgment creditors of Eaguet, under judgments rendered in 1833, and levied on his interest in the mortgaged premises in 1840.

From a careful examination of the deed of assignment, we are clearly of opinion that the interest of Eaguet, by that deed, was vested, in McMicken; and such being the opinion of the court, it is unnecessary to inquire as to the claims of the other defendants.  