
    Clements v. Doerner.
    A mortgage, corrected by a decree of court, under authority conferred by the act of April 17, 1857 (S. & C., 694), as between the mortgagee and a subsequent vendee, who has taken the property, bona ficle, in payment of a pre-existing debt, will take effect only from the time of correction.
    
      Eiirob. to the District Court of Cuyahoga County.
    Henry and Maria B. Nieberding, on the 3d day of April, 1877, executed and delivered to F. Doerner their promissory note for the sum of $575 due in two years after date. On the same day Doerner sold and conveyed to Maria B. Nieberding, wife of Henry, a certain parcel of real estate, and this note was given in lieu of a part of the purchase money. This note was secured by a mortgage, executed by. Henry and Maria B. Nieberding, bearing the same date and duly recorded, but the certificate of acknowledgment attached by the notary to the mortgage failed to state that he examined Maria B. Nieberding separate and apart from her husband. The petition in the court below alleged the fact to be that such separate examination did occur, and that the wife then declared the signing and sealing of the mortgage to be her free act and deed, and under the act of April 17, 1857 (S. & C., 694) asked to have the certificate of the notary corrected so as to set forth these facts.
    On the 16th of August, 1877, Maria B. and Henry Nieberding conveyed the mortgaged premises by deed to Robert J. Clements.
    The courts below ordered the certificate attached to the mortgage to be corrected as prayed for in the petition of Doerner, and held that, as to the deed to .Clements, the mortgage should take effect from the time of its delivery to the recorder.
    
      J. K. Hord, for plaintiff in error.
    Clements was a purchaser for value and entitled to such protection against a prior lien as is afforded in equity to a bona fide purchaser without notice of such lien. Roxborough v. Messiah, 6 Ohio St., 448; Carlisle v. Wishart, 11 Ohio, 178.
    
      Peter Zueher, and Wilson and Syhora, for defendant in error,
    cited Smith v. Norman, 19 Ohio St., 150; Copeland v. Mantón, 22 Ohio St., 402; Roxborough v. Messiah, 6 Ohio St., 448; Lewis v. Anderson, 20 Ohio St., 281; Dickerson v. Tillinghast, 4 Paige, 215; Padgett v. Lawrence, 10 Paige, 180; Willard’s Equity, 256.
   Nash, J.

The district court found that Mrs. Nieberding, at the time she executed the mortgage to Doerner, was examined by the notary, who took the acknowledgment separate and apart from her husband, and ordered the acknowledgment to be corrected so as to show this fact. We cannot interfere with this finding of fact, as it is not manifestly against the weight of the evidence.

After the execution of this mortgage, and before the correction thereof by the court, Mrs. Nieberding and her husband conveyed the mortgage premises to Clements, the plaintiff in error. All the witnesses, speaking upon this point, concur in saying that Mrs. Nieberding conveyed the land to Clements in payment of a pre-existing debt, and that Clements acted in good faith, and without knowledge of the mortgage. The court below held that the lien created by-the corrected mortgage took effect prior to the deed to Clements, and seemed to base this conclusion upon the idea that the creditor had “in no manner altered his condition by reason of the conveyance.”

This argument is fallacious, for the creditor’s condition was changed the moment he accepted the conveyance in payment of his debt. From that time he ceased to be a creditor, and had no right to maintain an action upon his former claim. This is a radical change of condition.

We think that Clements, having taken the conveyance in payment of a pre-existing debt, occupies in this transaction the position of a bona fide purchaser for value.

In the cases Carlisle v. Wishart, 11 Ohio, 173; Roxborough v. Messick, 6 Ohio St., 448; Lewis v. Anderson, 20 Ohio St., 281, we find nothing that conflicts with our conclusion, but, on the other hand, there is much said in them which supports us.

Judgment reversed.  