
    Williams v. Englebrecht.
    In an action by the mortgagee against the mortgagor, under the statute (Civil Code, §558; Rev. Stats. §5781), to recover possession of the lands mortgaged, the fact that such mortgage was given to compound a felony is not available as a defense.
    Error to the District Court of Scioto County.
    On July 14, 1874, John D. Williams commenced an action in the court of common pleas of Scioto county, against Charlotte Englebrecht and others, under the civil code, § 558; Rev. Stats. § 5781. The object of the suit was to recover possession of certain real estate in that county, the plaintiff alleging in his petition that he had a legal estate in the premises therein described, was entitled to the possession thereof, and that the defendants unlawfully kept him out of possession. There was an answer to the petition and reply to the answer.
    The facts are as follows: In 1866, Williams loaned $2,500, to Ludwig Englebrecht, who gave him a note for the amount, payable one year after date, which note was signed by Ludwig Englebrecht as principal and purported to be signed by Frederick Englebrecht, his father, as surety. When the note became due, December 20, 1867, Ludwig obtained a renewal of the loan for one year. To effect such renewal, he paid the interest on the note, and delivered to Williams a new note for the same amount, also executed by himself as principal and purporting to be executed by his father as surety, and also delivered to Williams an instrument purporting to be a mortgage on the premises sought to be recovered in this case, to secure the payment of the last mentioned note, which instrument, in the form of a mortgage, purported to have been executed and acknowledged in due form by Frederick Englebrecht and his wife Charlotte, one of the defendants, the premises being owned by said Frederick in fee. In fact, however, the name of Frederick Englebrecht was signed to the notes and the pretended mortgage without his knowledge or consent, and the name of Charlotte Englebrecht was signed to the pretended mortgage without her knowledge or consent, and in placing such signatures on the notes and mortgage, Ludwig Englebrecht committed forgeries. He also fraudulently procured the pretended mortgage to be attested by two witnesses, and the acknowledgment to be signed by a notary public of Scioto county. Williams believed the notes and mortgage to be genuine when he so received them, and so believed until March, 1868, when he first learned that the forgeries had been committed. He then insisted that a genuine note and a genuine mortgage on the premises should be executed, but Frederick Englebrecht refused to execute such note, and he and his wife refused to execute such mortgage, until Williams assured them that unless that was done he would immediately prosecute their son Ludwig for the forgeries. Thereupon, March 23, 1868, Ludwig and Frederick Englebrecht executed and delivered to Williams a promissory note for $2,500, dated December 20, 1867, payable four years after date, with interest, and Frederick and Charlotte Englebrecht executed, acknowledged and delivered to Williams, in due form, a mortgage on said premises, in which mortgage they say that we, “ in consideration of $2,500 to us in hand paid by John D. Williams, .... do hereby grant, bargain, sell and convey to said John D. Williams, his heirs and assigns forever, the following described real estate.” Here follows a description of the property in the same form as set forth in the petition, the usual covenants of seizin, against incumbrances, and of general warranty, a recital of the terms of the last mentioned promissory note, and a condition that “if the said Frederick Englebrecht and L. Englebrecht, or either of-them, shall pay said note when the same becomes due, with the interest thereon, then these presents shall be void.”
    Ludwig Englebrecht died before the note became due. Ered erick Englebrecht was living on the premises above mentioned at the time he executed such mortgage. He was the owner of the premises in fee simple and continued to reside thereon until he died intestate, his death also occurring before the note became due, and the defendants, his widow and heirs at law, have resided on the premises ever since his death.
    A jury was waived and the cause' was submitted to the court of common pleas on the pleadings and the above facts, which court found in favor of the defendants ; the district court affirmed the judgment; and this petition in error was filed by "Williams to obtain a reversal of those judgments.
    
      W. A. Hutchins and J. W. Hannon, for plaintiff in error.
    
      F. C. Searl, and Moore & Newman, for defendants in error
   Okey, C. J.

In 1826, Charles Roll and Peter Roll, his father, executed to Henry Raguet two promissory notes, each for the sum of five hundred dollars, and Peter Roll executed to Raguet mortgages on a parcel of real estate in Hamilton county to secure their payment. The notes and mortgages were given to compromise or compound a larceny said to have been committed by Charles Roll. The reports of the cases prosecuted on those instruments are very instructive on the question here presented. Iii an action brought on one of the notes against Charles Roll and Peter Roll, it was held that Raguet could not recover, the contract being executory and the parties in pari delicto. Roll v. Raguet, 4 Ohio, 400. The same result was arrived at, for the same reason, in a proceeding by scire facias, prosecuted by Raguet against Peter Roll on one of the mortgages. Raguet v. Roll, 7 Ohio, 1 pt. 76. The same result would have followed in any suit in chancery for an account of the amount due on the mortgages and a sale of the premises. McQuade v. Rosecrans, 36 Ohio St. 442. And see acc. Spalding v. Bank of Muskingum, 12 Ohio, 544, 548; Goudy v. Gebhart, 1 Ohio St. 262 ; Hoss v. Layton, 3 Ohio St., 352, 357; Cooper v. Rowley, 29 Ohio St. 547, 549. Raguet then prosecuted an action of ejectment against Peter Roll, basing his right to recover on the mortgages, the conditions in which had been broken, and Roll relied for his defense on the fact that the mortgages had been given to compound a felony. The court, however, while approving the decisions in the above mentioned cases between the parties, held that in the action of ejectment, such defense was not available to Roll. Grimke, J., in delivering the opinion, said: “Amortgage is in reality a conditional fee, which isas large an estate as a fee simple, though it may not be so durable. And the case comes within the principle, that when a conveyance has actually been executed on an unlawful consideration, the court will not merely not annul it, they will permit it to be enforced.” Raguet v. Roll, 7 Ohio, 2 pt. 70. But this is not inconsistent with the statement in Harkrader v. Leiby, 4 Ohio St. 602, 612, repeated in other cases, that “ a mortgage is now treated in both courts (law and equity) as a mere security for the debt, and the mortgagee is permitted to use the legal title only for the purpose of making effectual such security.” And see Hill v. West, 8 Ohio, 222 ; Mc Arthur v. Franklin, 16 Ohio St., 206. Hence, it is a good defense to ejectment on a mortgage that the debt has been paid. This principle is further illustrated in the fourth suit to which Roll and Raguet were parties. That was a bill in chancery in which the question presented was whether Roll had the right to redeem, and it was held that he had such right, and the court approve the decisions in the three preceding cases between the parties. Cowles v. Raguet, 14 Ohio, 38. But it, was further held that a court of equity will not set aside or restrain the enforcement of a deed of real estate the consideraron of which is wholly founded on an illegal agreement between the parties (Moore v. Adams, 8 Ohio, 373 ; Thomas v. Cronise, 16 Ohio, 54); though where, by threats of prosecution for a crime of which he was wholly innocent, a person was induced to execute a note and mortgage, it was held that equity would grant relief, and restrain the collection of the note or the enforcement of the mortgage. James v. Roberts, 18 Ohio, 548.

An examination of these eases will show very clearly, that under the law as it existed before the adoption of the code of civil procedure of 1853, there was no such defense to an action of ejectment based on a mortgage like this; nor could a bill in chancery, founded on such facts, be entertained to restain such action or quiet the title of the mortgagor. As against such mortgage the only relief in the courts available to the mortgagor or his heirs, on the facts here stated, was a bill to re-. deem. It is urged, however, that the rule is now very different, and that by reason of the blending of legal and equitable actions and defenses, under the code of civil procedure, the defense of illegality is equally available to the defendant whether - an action is brought upon the note, or upon the mortgage to obtain a sale of the property, or for the recovery of the possession of the land under the mortgage. True, the rights of parties, with respect to a few matters, are changed by the code, as, for instance, the acknowledgment of a debt sufficient to take a case out of the statute of limitations, must now be in writing; and the practical effect of permitting, in a proper case, the determination of the rights of the parties, legal and- equitable, in the same suit, enables a person sometimes to secure rights which'under the former practice would have been lost. But, with the exception of the express changes referred to, the rights of parties are unaffected by the code. This view is well expressed in Dixon v. Caldwell, 15 Ohio St. 412, 415, where it was said: “ The distinction between legal and equitable rights exists in the subjects to which they relate, and is not affected by the form or mode of procedure that may be prescribed for their enforcement. The code abolished the distinction between actions at law and suits in equity, and substituted in their place one form of action ; yet, the rights and liabilities of parties, legal and equitable, as distinguished from the mode of procedure, remain the same since, as before, the adoption of the codeWhite, J. As the heirs of the mortgagor could, in a case like this, have maintained a bill, under the former practice, to redeem, they may, of course, obtain the same relief in this case by cross-petition.’ Rev. Stats. § 5071. This is not a change of the rights of the parties. But, as we have seen, a bill in chancery could not have been entertained to restrain an action of ejectment on a mortgage like this, and hence the heirs of the mortgagor cannot maintain a cross-petition for such relief in this case. To hold otherwise is to affirm that the code has effected most material changes in the rights of parties, without any words to indicate a purpose to make such change.

No claim is made that the question before us is affected by the provision of the statute (Rev. Stat. § 5316) requiring a sale to be ordered when a mortgage is foreclosed; nor could such claim be properly made. The object of that provision will sufficiently appear in Anonymous, 1 Ohio, 235 ; Higgins v. West, 5 Ohio, 551; Morgan v. Burnet, 18 Ohio, 535.

In rendering a judgment of reversal in this case, we perform a disagreeable duty; but it is a duty, nevertheless. If it will tend to a better administration of justice to permit, in cases of this sort, such defense as was offered by the defendants, the law upon the subject must be changed by the legislature and not by this court.

Judgment reversed.  