
    Riley v. Rice.
    A husband and wife, to secure their joint note, executed and delivered a defective mortgage on land which was her general property, and after-wards sold and conveyed the same, subject to the mortgage, supposing it to be perfect, taking from the grantee notes arid mortgage on the premises for the purchase-money. They transferred the notes to a third party, and the grantee made a payment on the note given by the husband and wife.
    
      In an action to foreclose the mortgage given by the husband and wife, to which all parties in interest were parties:
    
      Held: 1. The grantee and those claiming under him are estopped to assert the defective execution of the mortgage.
    2. The holder of. the note intended to be secured by the defective mortgage, has a lien on the premises, and is entitled to priority of lien over the other mortgage.
    Error to the District Court of Wood County.
    The original action was brought by Riley, in the court of common pleas, against Ezekiel Rice and Harriet his wife, George A. Bryant and Remy, Hedges and Walters, to foreclose a mortgage oh lands in that county, executed by Rice and wife to one Lansdale, and recorded in March, 1877, and transferred to Riley. On the mortgage note there is indorsed a small payment made by Bryant.
    Remy, Hedges & Walters answered denying the existence of the mortgage or any lien in favor of Riley. They also set up a mortgage on the same lands made by Bryant, grantee of Rice and wife, to Mrs. Rice, and recorded in, April, 1877, and by her transferred to them. The other defendants made default. In the common pleas there was judgment for plaintiff and sale ordered, &c.
    In the district court, on appeal, there was a finding of facts, and judgment giving priority of lien to the mortgage held by Remy, Hedges & Walters. Riley excepted and prosecutes this proceeding in error to .reverse the latter judgment.
    The findings by the district court are these:
    That on the 5th day of March, 1877, the said defendants, Ezekiel Rice and Harriet P. Rice, his wife, executed and delivered to one Sarah Lansdale an instrument of writing purporting to be a mortgage on the lands and tenements mentioned and described in the petition herein, in order to secure the payment of the promissory note mentioned and set forth in said petition; that at the time said defendants so executed and delivered said instruments of writing they were husband and wife, and the said Harriet P. Rice was the owner in fee simple of said lands and tenements; that the only acknowledgment of said instrument of writing is in the words and figures following, to wit:
    “ State of Ohio, Wood county, ss.
    “Before me, a justice of the peace in and for said county, personally appeared the above named Harriet P. Rice and Ezekiel Rice, who acknowledged that they did sign and seal the foregoing instrument, and that the same is their free act and deed. I further certify.
    “ In testimony whereof I have hereunto set my hand and ■ official seal, at my office, this fifth day of March, A. D. 1877.
    “ Edward R. Sage,
    “ Justice of the Peace''
    
    “ That said instrument of writing was recorded in the records of mortgages of Wood county, Ohio, and was after-wards assigned and transferred to the said plaintiff, as is alleged in the petition, herein of said plaintiff; that on the 9th day of April, 1877, the said Ezekiel Rice and Harriet P. Rice, his wife, sold and transferred said premises to the said defendant, George A. Bryant, and executed and delivered to him a warranty deed therefor, and said deed contained the following clause and covenants of warranty, to wit:
    “ ‘And we, the said grantors, do for ourselves and our heirs, executors, and administrators, covenant with the said grantee, his heirs and assigns, that at and until the ensealing of these presents, we were well seized of the above described premises as a good' and indefeasible estate in fee simple, and have good right to bargain and sell the same, in manner and form as above written, and that the same are free and clear from all incumbrances, except a mortgage of one hundred and ninety-six dollars, and will warrant and defend said premises, with the appurtenances thereunto belonging, to the said grantee, his heirs and assigns forever, against all lawful claims and demands whatsoever, except said mortgage.’
    “ That said defendant, George A. Bryant, then gave and executed the promissory notes and the mortgage security thereof mentioned and set forth in the answer and cross-petition herein of the said defendants Remy, Hedges & Walters, for the unpaid purchase-money of said lands and tenements; that said mortgage was duly recorded in the records of mortgages of Wood county, Ohio; that said notes and mortgages have been duly assigned arid transferred to the said defendants Remy, Hedges & Walters, as is alleged in their said answer and cross-petition herein; that there is now due from the said defendant, George A. Bryant, to the said defendants, Remy, Hedges & Walters, upon the two promissory notes and the mortgage security thereof mentioned and set forth in their said answer and cross-petition, the sum of $571.50; that said sum bears eight per cent, interest; and that there is due from the said defendants, Ezekiel Rice and Harriet P. Rice, his wife, upon the promissory note and the mortgage security thereof mentioned and set forth in the petition herein of the said plaintiff, the sum of $245; that said sum bears eight per cent, interest.
    “And the court further finds, as the law of this case, that the amount so found due from the said defendant, George A. Bryant, to the said defendants Remy, Hedges & Walters, is the first, and prior lien upon said lands and tenements; and that the amount so found due from the said defendants, Ezekiel Rice and Harriet P. Rice, his wife, to the said plaintiff, is the second lien thereon.”
    
      Harrison, Olds Marsh and 8. P. Harrison, for plaintiff in error.
    
      Pillars Pillars, for defendants in error
   Martin, J.

The mere finding that Mrs. Rice “ was the owner in fee simple ” of the mortgaged premises, is too general to enable us to say it was her separate estate. It may have been.her general property. We are. bound to make every presumption consistent with the record in support of the judgment. We therefore accede to the claim made by counsel for defendants, that for the purposes of this inquiry, it must be presumed that. the premises were her general property, and that with respect to it, she had not the enlarged powers of a married woman over her separate estate. ' We need not further notice the claim of priority for the defective mortgage, predicated on the theory that the facts show a charge -in- equity on the premises as her separate estate.

The- omission of the officer to certify the. privy examination of the wife is the only defect in the mortgage. And thus defective, it conveyed no interest whatever as against her subsequent purchasers and judgment creditors. Van Thorniley v. Peters, 26 Ohio St., 471. Bryant, her grantee, and those claiming under him, are not affected by it or its record.

Do the recitals in the deed to Bryant, in connection with the admitted facts, subject the premises to a charge for the mortgage debt and create a priority of lien over the mortgage given by him ? We are of opinion that the facts found clearly evidence such charge and priority.

Rice and wife undoubtedly supposed that the mortgage had been perfectly executed. They intended it to be such. The mistake was not theirs, but that of the officer.

Under the act to give additional security to land titles as amended April 17th, 1857, (S. & C., 694; Rev. Stats., § 5867, etc.) a mistake of the officer in omitting to certify the separate examination of the wife may be corrected. Kilburn v. Fury, 26 Ohio St., 153.

A mortgage thus defective is therefore good and enforceable as between the parties. The statute invests the mortgagee with an equity which he may enforce against the wife.

In this situation she conveyed to Bryant subject to the mortgage. The recitals are particular and style, it a mortgage, and recognize it as an incumbrance and lawful claim on the premises for the full amount.

.A further stipulation that the grantee assumes and promises to pay it, would have had no greater effect in subjecting the premises than was imposed by the recitals as they stand. Bigelow on Est., 307; Lawrence v. Fox, 20 N. Y., 268. There is nothing to show that Bryant had any knowledge of the mistake of the officer, or any desire, at any time, to repudiate the incumbrance. He surely understood the land was bound for it, and it presumably entered into the consideration of his purchase, and he made a small payment on the mortgage note. He took title subject to plaintiff’s claim and is estopped to deny the due execution of the mortgage. Bigelow, supra, and authorities there cited.

Bryant’s mortgage, set up by Remy, Hedges & Walters, rests upon the land thus subjected for the amount of the defective mortgage. The recitals are in the deed under which they claim, and the mere transfer of the notes to them could not affect the superior lien of the plaintiff’s mortgage.

It follows that the district court erred in adjudging priority to the mortgage held by Remy, Hedges & Walters.

'Judgment reversed.  