
    Mary E. Welsh, Adm’rx., et al. v. Andrew F. Freeman.
    X. Where land is sold by the sheriff, in proceedings under the statute for the partition of real estate, the securities received by him of the purchaser for the deferred payments belong to the parties entitled under the statute to receive them in lieu of the land, and the sheriff is not authorized, by virtue of his office, to receive 'the amount secured thereby, nor to discharge the purchaser from liability to the parties to whom the purchase money is due.
    3. Where, on such sale, the sheriff, pursuant to the order of the court requiring him to take a mortgage of the purchaser, on the land sold, to secure deferred payments, took such mortgage to himself as sheriff, for the use of specified parties entitled to such payments, hut without further stating to whom the money should be paid — held, that payment of the amount so secured by the purchaser to the sheriff, and his official cancellation of the mortgage of record, without paying the money to the parties entitled to receive it, would not discharge the purchaser from liability to such parties, nor relieve the land from their right to subject it to the payment of the purchase money to them.
    3. The title of such purchaser in the land, his mortgage and its discharge by the sheriff, being matters of record, parties receiving conveyances from him are affected with constructive notice of the lien of the parties for whose use the mortgage was made.
    Error to the district court of Union county.
    The original action was brought in the court of common pleas of Union county, in 1867, to foreclose a mortgage. The case was appealed to the district court. The facts disclosed by the record, so far as material for the presentation •of the questions raised in the case, are as follows:
    In August, 1859, Andrew F. Freeman, the defendant in •error, filed a petition in the court of common pleas of Union county, for partition of certain lands belonging to himself and others in that county. The proceedings resulted in an ■order of the court for the sale of the land. In 1860, in pursuance of the order, Abram Wiley, then sheriff of the ■county, sold the land to David D. Welsh. On the 25th of June, 1860, the court approved and confirmed the sale, and ordered a deed to be made by the sheriff to the purchaser; and further ordered, that before delivering the deed to the ,purchaser the “sheriff require said purchaser to execute and deliver to him a mortgage on said premises to secure the two-thirds of the purchase money remaining unpaid, with interest thereon from this date, and payable one half in one year, and the residue in two years from this date; which said mortgage shall become absolute in case said purchaser fail to pay any portion of the residue of the purchase money, when and as the same becomes due.” The court also ordered the sheriff, after paying the costs of the proceeding, to distribute the money in his hands, being one-third of the purchase money received of the purchaser, among the parties entitled thereto, according to their respective shares, which were specifically designated by the court. Thereupon the sheriff executed a deed of the premises to the purchaser, and the purchaser executed and delivered to the sheriff a mortgage of the same premises. The mortgage was made to Abram Wiley as sheriff, and his successors in office, for the use of the said Andrew F. Freeman and the other parties named, as entitled to the land in the proceedings in partition, and their heirs and assigns The condition of the mortgage was as follows: “ Whereas said sheriff, under an order of sale from the court of common pleas, in a partition case then pending, sold said land to, and the grantor herein being the purchaser thereof, for the sum of $3,286.77; and whereas two-thirds of said sum remaining unpaid, to-wit; the sum of $2,191.18, and one half of which sum is-to become due on the 25th day of June, 1861, the residue on the 25th day of June, 1862, to-wit: $1,095.59, duo June 25th, 1861, and $1,095.59, due June 25th, 1862; both of which sums bear interest from the 25th day of June, 1860, at six per cent; now, if the said David D. Welsh shall pay said sums of money when the same becomes due, then this conveyance to be void, otherwise to remain in full force, and to become absolute on failure to pay any portion of said sums when due.”
    The mortgage was held by sheriff Wiley until the expiration of his official term, in 1861, and was then by him delivered to his successor in office, who held it until the expiration of his term in January, 1863, when it was delivered by him to his successor in said office, C. M. Robinson, in whose hands it remained until the 24th day of February, 1863, when Welsh, the purchaser and mortgagor, paid the amount then due on the purchase and mortgage to Robinson as sheriff and successor to sheriff Wiley, and the mortgage was then canceled of record by Robinson, and delivered to Welsh.
    Several parcels of the land, before the commencement of this suit, were sold and conveyed by Welsh to other parties who are made defendants in the case. These parties bought and paid for the land in good faith without notice (so far as shown in the case,) of the claim of the plaintiffs, other than that derived from the records of the court, and the mortgage, which was duly recorded immediately after its delivery.
    Sheriff Robinson never paid any part of the money received by him of Welsh to the parties entitled thereto. In 1864, Robinson was amerced by the judgment of the court of common pleas of Union county, though none of the parties entitled to the money had any knowledge of these proceedings in amercement.
    Both Welsh and sheriff Wiley died before the commencement of this suit, but their respective administrators are made parties, and the suit is brought to subject the estate of Welsh to the payment of the amount due, mentioned in the mortgage, and, in default thereof, to subject the mortgaged premises to the payment of the purchase money secured by it.
    The court found the equity of the case to be with the plaintiff, and that he held a valid and subsisting lien on the land for the deferred payments of the purchase money thereof, amounting, with interest, to $3,266, of which sum the plaintiff, Andrew F. Freeman, was entitled to one third, and that his co-heirs mentioned in the partition case were entitled to the remaining two-thirds, and thereupon ordered and adjudged, that the administrator of Welsh, and those claiming lauds under him, as set forth in the pleadings, pay to the plaintiff his third of said sum, amounting to $1,088.67, within ten days thereafter, and, in default thereof, that the land be sold to satisfy said sum due the plaintiff, and costs of suit, and that the balance of the proceeds of such sale be brought into court for distribution, according to the rights of the remaining mortgagees named in the petition.
    To reverse this judgment, Mary E. Welsh, as administratrix de bonis non of the estate of David D. Welsh, deceased, together with those who purchased lands of him, prosecute this petition in error. The errors assigned are in substance, that the court erred in rendering judgment for the plaintiff and against the defendants, and in ordering the land to be sold to satisfy the amount found to be due the plaintiff.
    
      Carper & Van Deman for plaintiffs in error :
    This money was properly paid by Welsh to Robinson. Robinson was the proper custodian of the mortgage, the proper person to receive the money and to give a sufficient acquittance, by way of cancellation of the mortgage and the delivery of it to the mortgagor.
    The mortgage was, by its terms, made to the “sheriff” in office, in 1860, and to his “successors.” It was so made, under the direction of Freeman’s attorney, as a part of the proceedings in partition, and was, in that form, Welsh’s contract; and he honestly fulfilled it, and will not be held to have been required to do otherwise than to pay it where he found it — in the hands of Wiley’s 11 successor.”
    The practice was by no means uniform in respect to whom or how the mortgage was to be taken, — whether to the parties, or to the sheriff, as an officer of the court, acting either officially, or as trustee by nomination of the court. This is shown by Brobst v. Skillen, 16 Ohio St. 382, and Griffin v, Underwood, Ib. 389.
    At common law Wiley would have been justified in passing the mortgage to his successor. Clerk v. Withers, 6 Mod. 290, 295, 298 ; Egerton v. Morgan, 1 Bulstrode, 70.
    Our statute does not seem to restrict, but to enlarge what is to go over to the new sheriff. S. & O. 1399, sec. 7.
    
      This mortgage, in the form and manner of its transmission from sheriff to sheriff, was not in violation of law, but in conformity to it. S. & C. 901, sec. (24). The act nowhere provides that the security for deferred payments shall be by mortgage ; nor does it specify by what security ; nor that the security shall be in the names of the parties. That is controlled by the court, according to its discretion. The payments are to be “ secured to them” — the parties, so as to be available for them — for their use and benefit, to the satisfaction of the court. In legal intendment the court is to pass upon and is to be “ satisfied ” with the mortgage as given ; and the presumption is that the court was “ satisfied” with this mortgage as given.
    
    By section 10 of the act of 1831 this mortgage was a paper belonging to the office of sheriff of the county, and passed with the office.
    The order of the court directed the sheriff to require the purchaser to execute and deliver a mortgage to him. The word “sheriff” in this order is not descriptive of Wiley merely, but means the court’s officer as such; and the order required, or, at least, authorized the mortgage to be given to the sheriff as mortgagee, and it was so given.
    Therefore, the mortgage was in proper form, and as the court directed ; and, in the absence of an order of court to the contrary, the sheriff as an officer was the legally entitled and appointed custodian of this mortgage, in trust for the parties in partition : and entitled, by the order of the court, to take the money on the mortgage, in pursuance of the statute. Brobst v. Skillen, 16 Ohio St. 386. Therefore the money due on tha mortgage was rightly paid by Welsh to Robinson, and the purchaser of the land was thereby discharged.
    The act of April 13, 1868, (S. & S. 505,) seems merely to be declaratory of what the law was ; and by section 10 referred to, (S. & C. 897, 898,) the money and the security are both and each spoken of alike. The sheriff holds both or either alike. His authority as to one is precisely as it is to the other, and it would seem reasonable that if he “ feceives” money he might “take” the security.
    But if Robinson was not properly entitled to hold this mortgage by virtue of his office and as successor to Wiley, neither under the law, nor because of the terms of the mortgage, nevertheless Welsh was justified in paying the money to Robinson, on the ground that it was, in that case, a payment to Wiley, so as to bind Wiley and his sureties, and discharged the land and the mortgagor. Wiley entrusted the mortgage to Robinson to collect. Bouv. Die. “ Delegation,” &c.
    As between Welsh and Wiley, Welsh did his full duty. Wiley was to take the mortgage ; as he demanded it, so he received it; as it was written, so it was paid. Wiley having received this security — proper and good in his hands certainly — if he has failed in any particular after that, Freeman must look to him and his sureties, and not to the land. Goudy v. Shank, 8 Ohio, 415 ; Brobst v. Skillen, 16 Ohio St. 886 ; Griffin v. Underwood, Ib. 389 ; Van Tassell v. Van Tassell, 31 Barb. 439.
    If Wiley is liable, Freeman may not, at his election, go on to Welsh’s estate instead of on to Wiley and his sureties. Wiley and Robinson are in court. If Wiley should be ultimately liable, the court will save a multiplicity of suits, and place the liability where it ought, in law and conscience, to be. Welsh and those claiming under him are in the best condition so far as innocence and good faith go.
    The judgment of amercement is not only a construction of the order of partition and of the mortgage, but is final and binding on Robinson, and cannot be disputed by his sureties. Calvin v. The State, 12 Ohio St. 60. Freeman can avail himself of it, but the other parties cannot. By that judgment Freeman is estopped. It is res adjudicata, and binds parties and privies.
    The claim, then, that Robinson and his bail are liable; but, if not, that Wiley is responsible; but that in no case is Welsh’s estate liable.
    
      
      J. W. Robinson, for defendant in error :
    The act of Eobinson in making an entry of satisfaction on the record of the mortgage, was without authority and void, and the lien of Freeman for the purchase money is still subsisting.
    The form of the mortgage was neither justified by the law, nor by the order of the court. The statute requires the mortgage to be given to the parties interested, and the court cannot dispense with that requirement. But the order of the court, properly construed, required the mortgage to be executed to the Freemans.
    As to the agency of the attorney in giving form to the mortgage, it is sufficient to say, that an attorney employed to have partition made under the statute, can do no more than pursue the law, and bind the parties by leave of the court.
    But the form of the mortgage does not change its legal effect. Neither Wiley nor his successors had any interest in the fund, and neither of them was trustee of the fund. Wiley was merely the custodian of the mortgage, and his power and duty was to keep it until demanded by the parties entitled to the money.
    The mortgage was but a security for the debt, and none but Freeman, who was entitled to the money, had a right to cancel the mortgage.
    The condition of the mortgage was that Welsh should pay the money, not to Wiley nor to his “successor,” but “pay it when due,” and the legal presumption is that payment was to be made to whom it was due.
    As between Wiley and Welsh and his representatives, the most that can be said is, they are in equal fault, and we cannot be compelled to pursue Wiley.
    The doctrine of innocent purchaser does not apply in this case, in favor of the purchasers from Welsh, for the reason that they have constructive notice of the mortgage, and if it is not conceled, it is still binding on them as well as on Welsh ; and if it is canceled in law, the whole of them are discharged, and the debt is paid, and our only remedy is against Robinson and his sureties. But how the sureties of Robinson can be reached it is difficult to imagine.
    The suggestion that payment to Robinson was payment to Wiley, does not make the case any better for plaintiffs in error, because it is not pretended that the act of Robinson is justified on the ground of agency, but of legal right; and besides, our argument and claim go to the extent that Wiley could not cancel the mortgage.
    The amercement can have no effect on the rights of the parties. It cannot be used for any purpose unless to prove the ratification of the act of Robinson ; but none of the parties entitled to the money had any connection with that proceeding.
    The only question is, could Robinson collect that debt, and cancel that mortgage ? If he could, it is paid ; if he could not, the mortgage is in full force and may be foreclosed by the parties to whom the money is due.
    P. B. Cole also for defendant in error :
    1. The power of the sheriff to make a deed is a naked legal power, not coupled with an interest. Therefore every prerequisite must precede the exercise of the power. And the same authority is required to give power to release. Williams v. Payton, 4 U. S. Cond. Rep. 394.
    2. A succeeding sheriff must have a special order to authorize him to convey lands sold by his predecessor, or to do any other acts for him. S. & C. stat. 900, sec. 18.
    3. The real question in this case is, had sheriff Robinson power to release the mortgage ?
    If Wiley had such power, it does not follow that Robinson had. Wiley had a right to hold the mortgage and deliver it to the owners ; but Robinson had no connection with it in any way. Wiley was the custodian of the mortgage, to hold, and pass it over to the former owners of the land, and there his powers ceased. Brobst v. Skillen, 16 Ohio St. 366.
    Holding the office of sheriff confers no general power on the incumbent to execute the unfinished business of his predecessor, unless there is some special law, or order of court authorizing it. There was no such special law or order of court authorizing Robinson to release the mortgage, and no authority derived from the parties.
    The fact that the mortgage is to Wiley as sheriff and his successors in office, does not estop Freeman from disputing Robinson’s authority to release. Counsel was employed to have partition made 'according to law, and if the mortgage was made contrary to law, the parties in partition are not bound by the illegal form of the mortgage.
    Therefore Robinson acted without legal authority in releasing the mortgage, and the act is utterly void.
   Day, J.

The plaintiff in the original action was a tenant in common, with other parties named in the case, of a tract of land in Union county, which, in a proceeding in partition, was duly sold by the sheriff, for one-third of the purchase money in hand, and the remaining two-thirds on deferred payments of one and two years, as required by the statute. To secure those payments, the purchaser, David D. Welsh, mortgaged the land to the sheriff who made the sale and to his successors in office, for the use of the plaintiff and the other parties entitled to the purchase money. No notes were given; but the mortgage specified the amounts to be paid in one and two years by the purchaser for the land, but did not state specifically to whom the payments were to be made. After both amounts became due, the money was paid to the sheriff of the county for the time being, who held the mortgage as successor of the sheriff who took it, and the mortgage was by him as such successor discharged of record, but he never paid the money to the parties for whose use the mortgage was made.

The plaintiff claims that the payment of the money to the sheriff, and his cancellation of the mortgage, in no way affects his claim for the purchase money of the land sold in the proceedings in partition, nor his right to enforce the mortgage given by the purchaser for its payment. Here, then, lies the main question in the case : did the payment to the sheriff discharge the liability of the purchaser and mortgagor ? The answer to this question depends much upon the legal right of the sheriff to collect and receive the amount secured by the mortgage. This cannot be determined without recurring to the statutes under which the proceedings were conducted.

The tenth section of the act of 1831, “ to provide for the partition of real estate” (S. &C. 897), is as follows : “That on return of the sheriff, of his proceedings, the same shall be subject to the examination of the court; and if the sale has been made, and the same is approved by the court, the sheriff, on receiving payment of the consideration money, or taking sufficient security therefor, to the satisfaction of the court, shall execute and deliver a deed or deeds to the purchaser or purchasers of the estate or estates so sold. And the said money or securities shall be distributed and paid by order of said court to and amongst the several parties entitled to receive the same, in lieu of their respective parts or proportions of said estate or estates, according to their just rights and proportions.”

The act of 1831 was amended in 1851 (S. & C. 901), as follows : “That in all sales made by the sheriff pursuant to an order in case of partition, unless the court shall, by special order, direct and require, on good cause shown, the sale to be made for cash down, the purchase money shall be payable, one-third on the day of sale, one-third in one year, and one-third in two years thereafter, with interest; the deferred payments to be secured to the parties, agreeably to the respective interests, according to the tenth section of the act aforementioned.”

From these provisions it is clear, that, whether the “sale be made for cash down,” or in part on deferred payments, the amount paid at the time of sale may be received of the purchaser by the sheriff. It is equally clear that the deferred payments are “ to be secured to the parties,” and that such securities are to be taken by the sheriff, “to the satisfaction of the court,” and, with the money received, are to be distributed “to and amongst the several parties entitled to receive the same, in lieu of their respective parts and proportions ” of tire estate. The plain object and purpose of the statute is, when the parties are divested of their land by the sheriff’s deed, to give them, in lieu thereof, the monpy and securities received therefor. This obvious intent excludes the idea that the sheriff is to collect and receive the money secured to be paid to the parties. Clearly the statute does not cast upon him this duty. At most it but makes him the custodian of the securities, with the duty of delivering them to the parties entitled to receive them. If he might collect the amount due, and thereby discharge the securities, he could convert the statutory security, taken “in lieu” of the land, to that of his official responsibility only. The statute, in guarding the rights of the parties to the partition, confers on him no such power ; on the contrary, it would be against the manifest spirit and policy of the statute. Nor is there anything in the order of the court requiring the mortgage security, or in the form of the mortgage as made, to confer on the sheriff the right and power of collecting and receiving the amounts secured thereby. The order of the court, directing the sheriff to require the “purchaser to execute and deliver to him a mortgage ” to secure the deferred payments, is entirely consistent with the statutory idea that the mortgage, to be executed and delivered to him by the purchaser, should be made to and payable to the parties entitled, under the statute, to receive the securities in lieu of the land, The mortgage, as framed, is for the use of these parties specifically. At most the sheriff obtained but a naked legal title, while the full equity is conveyed to these parties. Nor does it provide that the money secured thereby should be paid to the sheriff, but rather, by clear implication, to the parties entitled thereto. The purchaser could not, by his own act, divert the fund from the parties to whom by law he was bound to pay it, by the creation of a trustee to receive it for them, and thus discharge his liability. The debt he owed was the purchase money of the land. The mortgage was made to secure the payment of this specific debt to these specific parties. The mortgage was made by the purchaser of the land in form tc a party in the nature of a trustee to hold a naked title only. The case is clearly one where, if the purchaser pays to the trustee, he is not discharged until the money is received by the parties entitled thereto, and to whom it was his duty to pay it. He was responsible for its proper application. For he entrusted the money to the sheriff: the parties entitled thereto did not.

Nor is the case changed by the fact that the mortgage was drawn by the attorney for the parties in the partition case: for, as we have seen, there is nothing in the order of the court or the frame of the mortgage directly, or by implication, changing the statutory liability of the purchaser to pay the deferred payments to the parties entitled thereto. Moreover, the authority of an attorney, under a general employment to procure partition of lands, to make the payments other than as provided by the statute, may well be doubted.

The view we have taken of the case renders it unnecessary to consider how the word “successors” affected the mortgage, or the fact that the money was paid to the successor of the sheriff who took the mortgage; for, if pay ment to the latter was unauthorized, much more was it to the former.

Some of the defendants were purchasers of parts of the land in controversy of Welsh before the mortgage was canceled by the sheriff, and some afterwards; but, in either case, they were affected with notice of the rights of the parties in the partition case; for the character of the title was matter of record of which they were bound to take notice.

It results that the payment made to the sheriff and his cancellation of the mortgage did not affect the rights of the plaintiff below; and that the district court did not err in upholding the lien of the parties in partition on the land sold for the amount due them on the deferred payments. The judgment, must, therefore, be affirmed.

Welch, C. J., and White, McIlvaine and West, JJ., concurred.  