
    Peter O. Strang v. Abijah I. Beach et al.
    ♦Vhere a mortgage of real estate has been duly executed and recorded, a mistako in the attempted description of the mortgaged premises will be corrected' in equity, not only as against the mortgagor, but also as against attaching creditors and judgment creditors of the mortgagor and purchasers under them with notice of such mistake.
    Reserved in the district court of Lorain county.
    On the 20th of July, 1857, the plaintiff filed his petition-in the court of common pleas of Lorain county, against John P. Mickles, Abijah I. Beach, and others, setting forth that at the May term, 1857, of said court, he recovered a judgment against said Nickles for $601.78, and costs of suit. That on the 4th day of February, 1857, the time when he commenced his suit, he obtained an order of attachment, by virtue of which be attached, as the property of Nickles, several village-lots in the township of Wellington, among which were lots Numbers five and six, in Block No. 1. That upon the recovery of judgment as aforesaid, the court ordered the lands which had been attached to be sold in satisfaction of the judgment, but that the order could not be executed by reason of a cloud upon the title. That Beach pretends to have a mortgage or some other lien upon said lot Number six, and claims-to have bid off the same upon a sale thereof made upon a mortgage of said land, given by said Nickles to him. That he has in fact no title to, or lien on said land. That it was not included in any mortgage from said Nickles to him, and that both his mortgage and the sale thereon are void. That if lot Number six was included in the mortgage, Beach acquired no interest, as against the plaintiff, because the mortgage was without consideration, and made in fraud of creditors.
    The plaintiff prays that upon final hearing, the claim of Beach may be “barred;” that the land may be sold to pay the first mortgage and for general relief.
    On the 6th of September, 1858, Nickles and Beach filed their amended answer to said petition, which, as to Beach, was also in the nature of a cross-petition, setting forth, in substance, that on the 10th day of November, 1851, Nickles executed and delivered to Beach a mortgage of certain lands in Wellington (describing them); that the mortgage was left for record on the 27th, and was recorded on the 28th day of April, 1852; that it was not made in fraud of anybody, but was executed in good faith, and to secure the payment of large sums of money, advanced to Nickles by Beach. That at the February term, 1857, of said court, Beach obtained a decree for the sale of said mortgaged premises ; that they were sold and bid in by him; that at the May term, 1857, of the court, the sheriff executed and delivered to him, in due form of law, a deed of the premises, following the description in the mortgage, and that upon receiving said deed, he went immediately into possession of said premises, and ever since, by himself or those claiming under him, has occupied the same. That after the execution of said mortgage, the village of Wellington (in which this land is included) was incorporated and organized; that a recorded plat was made of the same, and that lots Numbers five and six, in Block No. 1, in said plat, are in fact a part of the land so mortgaged, or intended to be mortgaged, by Nickles to Beach; that when Beach took said mortgage, there was a dwelling house standing upon the piece of land therein last described (now known and designated in the petition as lot Number six), of the value •of twelve hundred dollars, or thereabouts, which lot and building were situated on the North-and-South State Road, in Wellington, and constituted the chief value of his security. That this lot and dwelling house, and the other land mentioned in the mortgage, though described in three pieces, composed in fact but one tract, were occupied as one homestead, and were all included in the sale to the defendant.
    Said Beach, by way of cross petition, states in addition to the foregoing facts, that the description of the premises in his mortgage, was taken from the original warrantee deed, under which Nickles held the land; that when that deed was executed, and for a long time afterward, a store was standing on the land which had formerly been occupied by E. M. and Homer Hamlin, hut which, before the execution of said mortgage, had been moved off; that Nickles, in copying from his original deed a description of the land intended to be mortgaged to Beach, by his own mistake and that of the person employed to draw the mortgage, and solely by mistake, omitted the words “ commencing at a point,” which were contained in his deed, and added the words “ of land,” which were not contained in it, and not adverting to the removal of the store, described the land in controversy as follows :
    “ Two and a half rods of land west of the center of the North-and-South State Road, in Wellington, and twelve feet north of the north side of the store formerly occupied by E. M. Hamlin; thence west, fifteen rods ; thence south, six rods; thence east, fifteen rods; thence north, six rods, to the place of beginning,” containing ninety rods of ground. That the description should have read as follows :
    
      Commencing at a point two and a half rods west of the center of the North-and-South State Road, in Wellington, and twelve feet north of the north side of the store formerly occupied by E. M. Hamlin; thence west, fifteen rods; thence south, six rods; thence east, fifteen rods; thence north, six rods, to the place of beginning, containing ninety rods of ground.
    The defendant further says, that these mistakes in the description were unknown to him or to Nickles, until after the commencement of this suit; but that the plaintiff, at the time he isaued his attachment, had knowledge of them, and of all the defendant’s rights in this land; and he prays that he may be decreed to hold the land free from the lien of the plaintiff, and for general relief.
    On the 17th day of September, 1858, the plaintiff filed a general demurrer to said cross petition, so far as the same prayed for relief.
    The case was taken by appeal from the common pleas tc the district court, and, standing upon this demurrer, the case, was reserved for decision here.
    
      
      S. Burke for plaintiff.
    
      iS. J. Andrews for defendants.
   Brinkerhoff, C.J.

It is very evident that, taken literally as it stands, the attempted description contained in the mortgage, does not afford the means of identifying any land whatsoever; for it furnishes no place of beginning — no starting point. But, if we prefix the words, “ beginning at a point,” or some equivalent expression, and drop the words, “of land,” ■then, by an ordinary and allowable reference to the extrinsic circumstances stated in the cross petition, the description will become sufficiently definite and intelligible. And the question is made and discussed by counsel in argument, whether, in accordance with established rules of construction, and the suggestions of approved precedent, this may not be done. But on this point the members of the court would probably find it difficult to agree; and we, therefore, pass it ever, and proceed upon the assumption of the correctness of what the plaintiff claims, to-wit: that the attempted description in the mortgage is so uncertain as to render it impossible, by means of it, to indentify the land attempted to be described.

On this assumption, and admitting that there is a mistake in the description, which can not be corrected by construction, the defendant, Beach, contends that the court ought to give effect to the clearly ascertained intentions of the parties, by reforming the mortgage, or by dealing with the case .as if the mortgage were reformed. On this question we find no serious difficulty.

It will be noticed that we are not embarrassed by any question of fact, nor by any question as to the amount or degree of evidence necessary for the proof of any fact. The cross-petition alleges, and the demurrer admits, the fact of mistake, and that the plaintiff, at the time he caused his attachment tc ■be issued, had knowledge of the mistake, and of all Beach’s rights in the land. The fact of mistake, and the fact of no-tice, are admitted by the demurrer.

Now, if this were a case between the parties to the mortgage alone, it is settled by a uniform current of decisions in Ohio, that this mortgage would, on the admitted mistake, as between them, be reformed. Davenport v. Sovill, 6 Ohio St. Rep. 459, and cases there cited. And, aside from our own peculiar statutory provisions in respect to mortgages, and the holdings of our courts under them, it seems to be equally well settled, by decisions of courts of high authority in neighboring states, that, on general principles of jurisprudence, "courts of equity will interfere to correct mistakes, not only between the original parties, but also those claiming under them in privity, as heirs, legatees, devisees, assignees, voluntary grantees, judgment creditors, or purchasers from them, with notice of the facts.” Adam’s Eq. 406, No. 1. 1 Sto. Eq. sec. 165. Simmons v. North, 3 Sm. & Mar. R. 67, is a strong case directly in point on this question; and the same may be said of Wall v. Arlington, 13 Georgia, R. 88, and White v. Wilson, 6 Blackf. 448. See also Gouverneur v. Titus, 6 Paige Ch. R. 347, and Whitehead v. Brown, 18 Ala. R. 682. The reasoning on which these cases go, is this, that there is 9 clear equity in favor of the vendee or mortgagee, as the case may be, as against his mortgagor or vendor, on the ground of which a court of equity will interfere to correct the mistake; that a judgment or execution creditor of such vendor or mortgagor, with notice of such equity, or a purchaser at a sale under execution, with like notice, stands in the shoes of the vendor or mortgagor, and so can have no better right or higher claim than the debtor himself would be permitted to assert.

But one question then remains; and that is, whether, on the state of fact alleged in the cross petition and admitted by the demurrer, a court of equity in this State will be precluded by our peculiar legislation, from granting the relief prayed for.

By the first section of the act of Feb. 22, 1831, to provide for the proof, acknowledgment, and recording of deeds and other instruments of writing” (8 Curwen’s Rev. Stat. 2448), it is provided, that when any competent person “ shall execute, within this State, any deed, mortgage, or other instrument of writing, by which any land, tenement, or hereditament, shall be conveyed, or otherwise affected or incumbered in law, such deed, mortgage, or other instrument of writing, shall be signed and sealed by the grantor or grantors, maker or makers, and such signing and sealing shall be acknowledged by such grantor or maker in the presence of two witnesses, who shall attest such signing and sealing, and shall subscribe their names to such attestation; and such signing and sealing shall also be acknowledged by such grantor or grantors, maker or makers, before” certain officers therein named.

By the seventh section of said act, it is provided, “ that all mortgages executed agreeably to the provisions of this act, shall be recorded in the office of the recorder of the county in which such mortgaged premises are situated, and shall take effect from the time when the same are recorded,” etc. And by a subsequent act of March 16, 1838, “ declaratory of the laws upon the subject of mortgages,” it is provided “ that mortgage deeds do, and shall take effect and have preference, from the time the same are delivered to the recorder of the proper county, to be by him entered on recor.d.” 1 Curwen’s Rev. Stat. 430.

Under the express and peculiar phraseology of these statutes, a series of authoritative decisions have been made in this State, holding that such mortgages only as were signed, sealed, witnessed and acknowledged in accordance with the provisions of the first section of the act first above refoi red to, were entitled to be recorded, or could be recognized as having been delivered for record or recorded; and that none but mortgages so executed and delivered for record, or recorded, could have any effect whatsoever, either at law or in equity, as to third parties, whether such third parties had notice of'the defectively executed or unrecorded mortgage or not. White v. Denman, 16 O. R. 59; Bloom v. Noggle 4 O. St. R. 45; Erwin v. Shuey, 8 O. St. R. 509; White v. Denman, 1 O. St. R. 110. In this last named case, the court say that the correctness of these decisions has been much questioned; that they are at variance with the former analogies of the law ; and' the judge delivering the opinion of the court declares, that if the question “ had not been determined by adjudication in this State, and affirmed and adhered to for a number of years,, a majority of this court would feel constrained to take a different view of it;” yet, inasmuch as it had become a rule of property in settling priorities among creditors, the court acting on the maxim stare decisis would not disturb it.

Now, for these reasons, we will not disturb the rule thus established. It has the merit, at least, of simplicity, and of being well known and understood. But the question before, us is, not whether we will disturb the rule thus established, but whether we shall enlarge the rule, and extend its operation to a case not within the letter of the statutes, and clearly distinguishable from any which have heretofore been held to be within these statutes. The rule is a statutory rule; and the cases referred to proceed in obedience to what were deemed the unbending and imperious requirements of a legislative enactment. These statutes relate solely to the mode of execution, and the recording of the mortgage; a mistake in these respects, it is settled, can not be corrected; but, as to all mistakes and defects of the instrument, in other respects, the statutes are entirely silent, and upon them the decisions which have been made upon questions arising under these statutes have no bearing.

As to the due and formal execution and recording of the mprtgage in the case before us, no exception is taken; in. these respects it is admitted to be perfect. And it seems to us, therefore, that we are not only at liberty, but are required to stop where the statutes stop ; and as to a mistake-in an attempted description of mortgaged premises — which is-a matter not covered by the statutes — to resort again to the general doctrines of equity jurisprudence, on which our statutes are an admitted innovation.

This view of the case overrules the demurrer to the cross-petition.

Demurrer to cross petition overruled, and cause remanded, with leave to plaintiff to answer cross petition.

Scott, Sutliee, Peck and G-holson, JJ., concurred.  