
    The Heirs of Samuel Stover v. The Heirs of William Bounds.
    Where the owner of a certificate of entry of land from the United States assigns such certificate as security for a debt, with a condition of defeasance, on the payment of the debt, such assignment creates an equitable mortgage on the land covered by such certificate.
    Where the assignee of such certificates sells the same to a person who has notice of the terms on which it was first assigned, such subsequent assigiiee will hold the same subject to the right of the original assignor to redeem.
    The right of the original assignor to redeem will not be affected by a provision in the condition of defeasance, that his right to redeem is limited to a fixed time after the transaction. Once a mortgage, always a mortgage.
    • Bill of review reserved in Licking county.
    
      The controversy arises between the parties as to the title to one hundred and sixty-nine acres of land in the county of Licking.
    *Thislandwas purchased from the United States in 1816. The price was §839, of which §209 were paid in cash; the residue, in accordance with the law then in force, was to be paid in installments. A certificate of the entry and payment of the first installment was obtained by the person making the entry. This certificate was shortly afterwards purchased by "William Bounds, who went into possession of the land and commenced improving it. In December, 1824, Bounds, being indebted to John Edwards, assigned to him this certificate. Edwards gave Bounds a writing, under seal, in which, after reciting that Bounds had executed a note to Edwards for §183, which note was secured by a mortgage oñ a tract of one hundred and seventy acres of land, which was encumbered by a prior mortgage, it was agreed that if Bounds should, before the first day of March then next, remove the prior mortgage from this tract of land, that then the certificate should be re-assigned to him. The certificate was left in the hands of William Stanbery, the attorney who drew up the writing above referred to, who retained it until after the first day of March, and then delivered it to Edwards, Bounds not having performed the conditions on which he was to have a re-assignment of the certificate. Shortly afterwards, in April, 1825, Edwards sold the certificate to Samuel Stover, who paid off Edwards’ claim against Bounds, forcibly ejected Bounds from the premises, took possession, paid up the instalments of purchase-money due the United States, obtained a patent for the land, and continued in possession until the time of his death, in 1835.
    Bounds, after being ejected from the land, continued to live in the neighborhood for more than a year, when he left his family and went to parts unknown, and has not been heard of for a number of years.
    The bill was filed by the children and heirs of William Bounds, against the children and heirs of Samuel Stover and others claiming title through him.
    The late supreme court on the circuit, in Licking county, decreed in favor of Bounds’ heirs and permitted them to redeem the land.
    *Two errors are assigned by the heirs of Stover on their bill of review:
    First. That the court erred in finding that Samuel Stover held this property as mortgagee.
    
      Second. That the testimony does not show that William Bounds was dead at the time of filing the bill.
    
      William Stanbery, for complainant in review.
    1 Tesey, 278; Hunt v. Ten Eyck, 2 Johns’ Chy. 100; 1 P. Williams, 261; 2 Atk. 303; 2 Fonb. 260.
    
      H. H. Hunter and Henry Stanbery, for defendants in review.
    Ludlow’s Heirs v. Kidd’s Heirs, 2 Ohio, 381; Stevens v. Hey, 15 Ohio, 317 ; Lea v. Carpenter, 16 Ohio, 417.
   Caldwell, C.J.

The first question arising in the case is whether the assignment of the certificate by Bounds to Edwards constituted a mortgage.

The writing given by Edwards to Bounds, at the time of the assignment, gave the right in express terms to Bounds to redeem, by the performance of the condition, any time before the first of March then next following.

It was then clearly a mortgage, whilst the right to redeem by the terms of the contract existed, and being once a mortgage, it always remained such, as well after as before condition broken. But it is said by complainants in review that, if it could be- held to be a mortgage, it was only a mortgage of a personal chattel, and that the sale of the certificate by Edwards to Stover, after condition broken, vested in Stover a clear and indefeasible title. Now, it is true that a certificate of this kind does not create' a complete title to land; still its whole object and effect is to create a claim or title to real estate, and it has no value except so far as it effects that object. It gives the party to whom it belongs the right to enter and hold the land, the right to obtain a complete legal title to the exclusion of all other persons, and is a title to the land, although not a perfect one. We suppose, then, that Edwards, by the assignment of the certificate, obtained an ^equitable claim on the land, subject to the right of Bounds, the mortgagor, to redeem; and that Stover, having notice of Bounds’ rights, took the certificate subject to the same condition.

As to the second error assigned, we would merely remark that the evidence shows that Bounds had not been heard from for more than seven years before the commencement of the suit, and might be presumed to be dead, and his heirs entitled to bring suit for the land.

It is also objected that no process was issued on the amended bill. We know of no rule of practice that requires defendants who are in court to be served with process to answer an amended bill.

We see no error in the decree of the supreme court; the bill of review will therefore be dismissed.

Bill dismissed.  