
    Horst v. Dague.
    A testator directed his executor, by his will, to sell his real estate, and after setting aside a specified sum for the support of the widow, to divide the remainder of the proceeds of the sale among his eight children. After the testator’s death, and before the executor sold said real estate. S., a son of the testator, mortgaged his interest therein, to secure the payment of a loan of money. Held, that such mortgage operated as an equitable assignment to the mortgagee, of the interest of S. in the proceeds of the sale of said real estate by the executor.
    Error to the District Court of Wayne county.
    
      The original action was brought in the Wayne Common Pleas, on November 26, 1873, by the defendant, Hague, against Simon Rohrer, Benjamin Rohrer as executor of the last will and testament of Isaac Rohrer, deceased, and Henry Warren. The object of the action was to-compel the application of funds to come into the hands of said executor, belonging to said Simon, to the payment of a ’debt of Simon, upon which Hague was surety-He alleged the recovery of a joint judgment against-himself and Simon Rohrer, on November 12, 1873, by Warren, in the Circuit Court of Branch county, Michigan, on a promissory note of Simon, on which the-plaintiff below was surety; and that the only property possessed by Simon consisted of his distributive share-of his father’s estate, which was alleged to be sufficient to-pay said debt, and soon to be ready for distribution by said executor. He prayed for a decree directing the application-of such fund to the payment of such judgment. The items-of the will of Isaac Rohrer bearing upon Simon’s interest in the estate were as follows :
    “ 1st. It is my will, and I do order, that all my debts and funeral expenses be paid as soon as can conveniently be done after my decease.
    “2d. I give and bequeath to my beloved wife Rebecca, the interest of three thousand dollars annually — the principal to be secured by mortgage on my real estate ; and I also empower my executor hereinafter named to purchase-a property for a home for my said widow, not to exceed one thousand dollars in value ; all the above property she-shall have as long as she remains my widow; but she shall forfeit all claim to the same if she marries again.
    “ 3d. I do order that my executors shall sell my personal property at public sale, and also my real estate, and I empower them to make deed to purchasers, to execute,, acknowledge, and deliver in fee simple.
    “ 4th. I give and bequeath all the remainder of my personal and real estate to my eight children, namely : Simon, Bavid, Isaac, Martin, Baniel, and John, my sons, and Mary Ann, and Emma Frances, my daughters, to be equally divided amongst them, with the exception of Simon, the oldest son — he is to have four hundred and twenty-five ■dollars less, he having received that amount before.”
    It appears from the answer of the executor, that on November 27, 1873, he sold said real estate on deferred payments, and that when such payments were received from the purchaser, Simon would be entitled to the sum of about $600. He also alleged that Simon Rohrer had mortgaged his interest in said real estate to one David Horst. Horst was made a party defendant, and from his .answer it appears that on the 13th day of September, 1873, Simon Rohrer mortgaged to him to secure a loan of fifteen hundred dollars, for one year, the undivided -eighth part of said real estate mentioned in said will, and that said money was loaned on the express condition that .■said Simon would secure the same by mortgage of his interest in said real estate, as the heir of Isaac Rohrer, and as .a legatee under said will. He prayed for an application ■of the avails of said interest, when the property was sold, to the payment of the mortgage debt, when due, and for an injunction against the plaintiff'. Simon Rohrer was in •default, and no issue was joined by Dague, or otherwise, on the facts alleged in the answer of Horst.
    The district court, to which the cause was appealed, gave judgment on these facts for the plaintiff' below, Dague, directing the said executor to pay, as he received the avails of the sale of the real estate, such portion as Simon was entitled to under the will of Isaac Rohrer, to the clerk of ;the court, to be applied to the payment of the Michigan Judgment.
    This judgment is assigned for error.
    
      J. P. Jeffries, for plaintiff in error f
    All estates under wills become vested on the death of the •testator, unless some intervening estate expressly prevents. ■2 Redfield on Wills, 215, § 16; lb. 238, 250, 251; 2 Williams on Ev. § 1054; Pruden v. Pruden, 14 Ohio St. 251; 
      Sweet v. Chase, 2 N. Y. 73; Conkling v. Moore, 2 Bradf. Sur. 179; Marsh v. Wheeler, 2 Edw. Ch. 156; Chew’s appeal, 37 Penn. St. 23 ; Moor v. Lyons, 25 Wend. 119.
    Simon Rohrer took a fee in the land at the death of his father. 1 Jarman on Wills, 619; 1 Hilliard on Mort. • 215-216; Ives v. Comm’rs, Wright, 626; 25 Wend. 119: Lessee of Thompson v. Hoop, 6 Ohio St. 487.
    The direction to sell can not defeat the gift of the land,, as it is given to the testator’s children. 1 Redfiekl on Wills, 460-465; Rathburn v. Dyckman, 3 Page Oh. 9;. Lessee of Warman v. Teagardnen, 2 Ohio St. 380; Young v. McIntyre, 3 Ohio St. 498.
    
      McSweeney § Parsons, for defendant in error,
    claimed that the mortgage was a mortgage of realty or it was nothing. There is no such thing in Ohio as an equitable-mortgage. 17 Ohio, 371; Bloom v. Noggle, 6 Ohio St. 54.
   Boynton, J.

The judgment of the district court declares, in effect, that the mortgage of Simon Rohrer to the plaintiff in error conveyed no interest acquired by the former in the estate of his father by virtue of the provisions of the will. The reason assigned in support of this conclusion is, that the testator’s direction to his executor to sell his real estate and to divide the proceeds of sale, as provided in the will, operated in equity to convert the reality into personalty (.Furguson v. Stuart’s ex’rs, 14 Ohio St. 140), and that, inasmuch as the mortgage does not purport to convey or pledge any interest in the personal estate, or in the proceeds of the sale of the real estate, to-secure the payment of the mortgage debt, the plaintiff' acquired no interest in the avails of the sale made by the executor under the power given by the will.

In this holding we think there was error. The rights of the parties rest, and are to be determined wholly upon considerations of equity.

If, as between Simon Rohrer and the plaintiff in error, the latter acquired, by his mortgage, a lien upon that part or share of the proceeds of the sale of the real estate of the testator which would belong to Simon when the executor should execute the power of sale, it is very manifest that the judgment was wrong, unless the defendant, Dague, had acquired a lien upon such fund superior-to that of the plaintiff. That he acquired or possessed such lien before the execution and delivery of the mortgage, is not claimed. Nor did he acquire one by the commencement of the action, unless the case is one in which he is entitled to a judgment subjecting to the payment of the debt upon which he was surety, equities belonging to the principal debtor. That the case is one of that character is extremely doubtful; for, if he may proceed by petition, in the nature of a creditor’s bill, iipon the facts stated, to reach and subject equities to the payment of such debt, his rights would not only be superior to the creditor’s but his rights, as surety, before he pays the debt of his principal, would be superior to those arising upon and by reason of its payment; as in the case of payment, he would be required to reduce his claim to judgment, and exhaust his legal remedies, before resort could be had to equity to enforce its collection. It is true that section 500 of the code, under which it is said the action below was brought, authorized, and the revised code now authorizes, a surety to maintain an action against his principal, to compel him to discharge the debt or liability for which the surety is bound, after the same becomes due. But equity authorized the same thing to be done before the code was enacted. Ranelaugh v. Hayes, 1 Vern. 190; Hayes v. Ward, 4 John. Ch. 123; Story’s Eq. Jur. § 730. The only necessary parties defendant in such ease, the claim not having been reduced to judgment, were the creditor and the principal debtor; and the judgment rendered, required the principal to pay the debt to the creditor, or to the clerk of the court for him, and in case of default, execution was awarded. But, as the executor is not here complaining of the judgment, it is not necessary to a decision of the case, to determine whether the original action was well brought or not; and I have said this much respecting the right to maintain it, more for the purpose of showing that no lien upon the fund sought to be reached was acquired by its commencement, than to establish the fact that there is no ground stated upon which it can be maintained at all. The undenied averments of the answer of the plaintiff in error, conclusively show that Simon Rohrer intended to secure the payment of the sum borrowed of the plaintiff in error by transferring as security therefor, the entire interest acquired under his father’s will in the real estate devised, and when sold, in the proceeds of the sale; and the fact is equally clear, that the money was loaned by the plaintiff on the faith of such security, and in the full belief that he had acquired a lien on such interest, whether denominated real ■or personal, or whether the interest was legal.or equitable. Hence, no prejudice resulting to intervening rights of third persons, if the mortgage failed to express the intention of the parties with sufficient clearness to enable the court to carry the same into effect, equity would reform it, although the mistake consisted in misapprehending or misjudging its legal effect. Evants v. Strode’s Adm’r, 11 Ohio, 480; Clayton v. Freet, 10 Ohio St. 544.

But there is no necessity for such reformation. The intention of the parties is sufficiently apparent. The legal title to the property mortgaged, at the date of the mortgage, was in Simon Rohrer. It was, therefore, quite natural to regard his interest as consisting of real, as distinguished from personal estate, although there was an unexecuted power of' sale outstanding, the execution of which would divest his title, and pass it to the purchaser under the sale made by the executor. But whether the thing mortgaged was called land or money, or however it was described, is quite immaterial in a court of equity, where the substance and not the form of the transaction is regarded. The mortgagor intended the mortgage to cover his interest in the property, whether classed as real or personal estate. The mortgage, therefore, operated as an equitable assignment of Simon Rohrer’s interest in the proceeds of the sale of the real estate, as security for the payment of the mortgage debt.

This being the substance, and, within the contemplation of the parties, the essential character of the transaction, equity will carry the same into effect. Simon Eohrer neither questions its character nor disputes its validity. Nor could he do so successfully if he were so inclined. And as the defendant Dague had no lien upon the fund sought to be reached when the mortgage was executed, his rights, at most, are no better or higher than those of Simon Eohrer. The judgment in his favor was therefore erroneous.

Judgment reversed.  