
    Thomas Smith v. Daniel Altick.
    Where A. sold lands, on which a distillery, with the necessary fixtures, had theretofore been erected, to B., by a written contract, which contained a. stipulation, that upon the execution of the deed to B. he was to deliver to A. a mortgage on the premises sold, to secure the payment of the-remainder of the purchase money, and B. took possession of said, premises under said contract. Held — 1. That B. had no right, while in. possession of said premises, either under said contract or as mortgagor, to sever and dispose of the fixtures of said distillery, if thereby the-security for the purchase money was rendered insufficient. 2. That purchasers of such fixtures from B., chargeable with knowledge of the-rights of A., he being'guilty of no laches, are liable to A. for the value-of such fixtures, if it be afterward found that the value of the remaining security is insufficient to pay the purchase money dire. • 3. That in an action brought by A., either on the contract or mortgage, to subject the remaining premises to sale, to pay such purchase money, A. may join with B. in such action, as such purchasers, and subject the value-of the fixtures purchased by them to the payment of any portion of the-purchase money that may remain due, after the application thereto of the proceeds of the sale of said remaining premises, according to the-inverse order of time in which the purchases were made.
    Error to tbe District Court of Shelby county.
    The facts in the case are as follows:
    On December 4, 1863, the plaintiff, Thomas Smith, entered into a contract, in writing, with one A. C. Penniman,. for the sale and conveyance to him, in ninety days from the date of the contract, certain lots in the town of Sidney,, and out-lots 178 and 179 of said town, “having thereon erected the Sidney distillery, with all the machinery, fixtures, etc., thereto belonging or appertaining,” together with certain lands situate in Shelby county, in consideration of the agreement of Penniman to pay to the plaintiff, at the date of the conveyance, the sum of $5,000, and to execute and deliver to him his three several promissory notes for $3,333.33j- each-, payable respectively in one, two, and three years from December 4, 1863, with interest from that date, and a mortgage on the real estate, and the distillery and fixtures erected on the out-lots, to secure the payment •of the notes.
    On the day the contract was entered into, Penniman took possession of the real estate, distillery and fixtures, and ■continued in the possession thereof, under the contract, until March 1, 1864, at which time the conditions of the contract were performed by the parties respectively, the “ distillery, fixtures, etc., thereto belonging or appertaining, •erected on said out-lots,” being included in the description •of the premises, both in the deed of the plaintiff and the •mortgage of Penniman.
    "Whilst Penniman was in the possession of the premises, under the contract, he severed, and rerhoved from the distillery, fixtures “belonging and appertaining thereto,” of the value of $5,306, and at sundry times, between December 4, 1863, and March 25,1864, sold of the fixtures of the ■distillery, so severed and removed by him, of the value of $1,716.08, to the defendant, Daniel Aitick, who had notice of the plaintiff’s rights under the contract and under the ■mortgage, and who converted the same to his own use.
    On December 24, 1864, the first note, secured by mortgage, having become due and payable, the plaintiff' here, who was also plaintiff in the court below, filed his petition in the Court of Common Pleas of said county against Penniman, the mortgagor, to foreclose the mortgage, and sell what remained of the mortgaged premises, to pay the amount secured by the mortgage; and against James Brownell and William Marshall, who were purchasers from Penniman of a portion of the fixtures of the distillery, with notice of the plaintiff’s lien, to procure an order, requiring them to pay into court the valué of the fixtures .so purchased by them of Penniman, to make up any loss the plaintiff might sustain, by reason of the diminution in •value of the mortgaged premises, on account of the sale of the fixtures.
    The defendant, Daniel Aitick, who resides in Montgomery county, in this state, was afterward, on motion^of the .plaintiff', made a party defendant in the action, and, on. leave of the court, the plaintiff amended his petition, setting out, as against Altiek, the same facts as are set out in the original petition against Brownell and Marshall, and asking the same relief against Altiek as is asked in the original petition against Brownell and Marshall. To this amended petition the defendant, Altiek, demurred, for the ■causes:
    1. That several causes of action are improperly joined in the petition.
    2. That the petition does not state facts sufficient to constitute a cause of action.
    The Court of Common Pleas sustained the demurrer, dismissed the action as to the defendant, Altiek, and rendered judgment in favor of Altiek, against the plaintiff, for costs, to which rulings and judgment of the court the plaintiff excepted.
    A petition in error was afterward filed by the plaintiff, Thomas Smith, against the defendant, Daniel Altiek, in ■the District Court of Shelby county, to reverse the judgment of the Court of Common Pleas, assigning for error:
    1. That the Court of Common Pleas erred in sustaining the demurrer of the defendant, Altiek, to the amended petition of the plaintiff.
    2. That the judgment was given for the defendant,Daniel Altiek, when it ought to have been given for the plaintiff.
    The District Court affirmed the judgment of the Court of Common Pleas, and rendered judgment for costs against the plaintiff, which ruling and judgment of the District Court were excepted to by the plaintiff, and he now files his petition in error in this court against Altiek, to reverse the judgment of the District Court, assigning for error:
    1. That the Court of Common Pleas erred in sustaining the demurrer of the defendant, Altiek, to the last amended petition of the plaintiff.
    2. That the District Court erred in affirming the judgment of the Court of Common Pleas,
    3. That the District Court erred in affirming the judgment of the Court of Common Pleas, dismissing the petition of the plaintiff as to Daniel Altick.
    
      J. H. Mathers, attorney for plaintiff:
    The cause of action against Penniman on the note was-joined with those arising under the mortgage and vendor’s-lien, by virtue of the act to amend the code. (S. & S. 575.)-This act applies in its terms to a mortgage lien, or any other specific lien.
    By sec. 80 of the code, the plaintiff may unite causes of action, when they arise out of the same transaction, or transactions; connected with the same subject of action.. And it makes no diffei’ence whether the causes of action wbich so arise are legal or equitable, and ex contractu or ear delietu, Sturgess et al. v. Burton et al., 8 Ohio St. 216; Van Sant. Pl. 342, 681.
    The purchasers from Penniman took the fixtures, which formed part of the building, precisely as if they had purchased the building itself. If this be so, then inasmuch as-the different purchasers of mortgaged property have an equity to have their respective purchases subjected to the-payment of the mortgage, in inverse proportion to the-times of purchasing, it is apparent that the causes of action against the various defendants are all intimately connected, and that a court of equity could not possibly enter-a complete decree without having all the parties before-it. 6 Ohio St. 97. Any person necessary to a. complete-determination of the controversy may be made a party. Sec. 35 of Code.
    All persons materially interested, either legally or equitably, in the subject-matter of a suit, should be made parties to it. Story’s Com. Eq. Pl. 74; Bugbee v. Sargent, 23 Me. 269; Mix v. Hotchkiss, 14 Conn. 32; 5 Paige, 20; 6 Johnson’s Ch. 139; Watson v. Cox, 1 Ired. Ch. 389; Comstock v. Bayford, 1 S. & M. (Miss.) 423.
    It is not necessary that various causes of action in one-complaint should effect all the parties equally; it is enough that they effect all, though in different degrees. Vermeile v. Beck, 15 How. Pr. 333; Wandle v. Turny, 5 Duer, 661; Newbold v. Warren, Abbott’s Pr. 14, p. 80; Reed v. Stryker, 12 Abbott, 47.
    Lands lying under a judgment lien, which have been sold to purchasers, must be sold to satisfy the judgment, in the inverse order of the dates of the purchase. Commercial Bank v. Western Reserve Bank, 11 Ohio 444. The same principle applies to mortgages and vendor’s lien. 14 Ohio; St. 365; Johnston v. Williams, 4 Minn. 260; Anketel et al. v. Converse et al., 17 Ohio St. 22; 1 Washburn on Real Property, sec. 16, p. 540, 2d ed.; Niel v. Kinney et al., 11 Ohio St. 58; Boos v. Ewing et al., 17 Ohio 500.
    In regard to the second question. We claim the facts alleged constitute a cause of action against Altiek. The takiug down and selling the various parts of the machinery, which had been affixed to and formed part of the-premises ■bound by plaintiff’s lien, did not change plaintiff s right to •the dissevered property, but that he could follow it or its proceeds wherever he could find it.
    The several articles, before severance, undoubtedly were subject to the lien, and, certainly, their wrongful severance by Penniman would not release them from it, and whether, .after severance, they be considered as real or personal estate, still they are the property of the lien-holder so far as is necessary to make effectual his lien.
    We suppose that it will not be disputed that, as against Penniman himself, it would be held that these articles, though actually dissevered, were still parts of the premises ■bound by the lieu, and if this be so as to Penniman, it ■must also be the case as to every one purchasing from him with knowledge of the facts. At the time Altiek purchased, Penniman had merely an equitable title, and having merely .an equitable title, the purchaser must abide the case of the •seller. Follett v. Reese et al., 20 Ohio, 555.
    And takes subject to any claim, that could be asserted against the assignor. Ibid. 456.
    The mortgagor has no power to confer any better title sthan he holds, and those who might desire to purchase of him are bound by the rule of “ caveat emptor.” Kanaga v. Taylor, 7 Ohio St. 142. Consequently, Altick stands in no better plight than Penniman himself, and is chargeable with full notice of how Penniman held the articles he (Al-tick) was purchasing. 3 Harris (Penn.), 513; Ferrand v. Thompson, 5 B. & Ald. 826; 17 S. & R. 415; Hoskins v. Woodward, 9 Wright (Penn.), 42; Burnside v. Twitchell, 43 N. H. 390; 2 Greenl. 173; Allison v. McCune, 15 Ohio, 731; Frothingham v. McCussick, 24 Maine, 404.
    
      Young § Gottsehall, attorneys for defendant:
    I. No cause of action against Altick is stated in the-petition. The property sold to Altick was never covered by plaintiff’s mortgage, but was dissevered from the premises and sold to Altick by Pennimnn whilst he (Penniman} was in possession under plaintiff’s open contract of sale,, and before the .execution of the mortgage. Stauffer v. Eaton, 13 Ohio, 322.
    Even if it should appear from the petition that some of this property formed part of the' mortgage premises, and had been dissevered and sold after the execution of the mortgage, the facts stated in the petition are not sufficient,, because there is no averment that the mortgage security was thereby lessened ; and, at the time of the sale, the condition of the mortgage had not been broken. Allison v. McCune, 15 Ohio, 726.
    The cases cited by plaintiff’s counsel in Maine, New Hampshire, Massachusetts, and Pennsylvania Eeports, are-based upon the proposition that the mortgagee, from the execution of the mortgage, and before condition broken, is' the legal owner of the premises, and has the right of possession.
    But such is not the law in Ohio. 2 Ohio, 224; 8 Ib. 222; 10 Ib. 73, 438; 15 Ib. 676; 3 Ohio St. 75.
    II. The several causes of action are improperly joined.
    The causes of action against Penniman are the notes and mortgage, upon which plaintiff asks a personal judgment for the amount of the notes, and an order for the sale of the mortgaged premises.
    The cause of action against Altick is, that he had purchased and converted to his own use, certain property which had, prior to the execution of the mortgage, been dissevered from the premises by Penniman, the mortgagee, whilst he was in possession thereof under a contract of sale from the plaintiff, in which he stipulated, within ninety days, to convey to. said Penniman said premises, upon his paying $5,000 in money, and executing notes and a mortgage such as is described in the petition ; and the plaintiff’s prayer is, that said Altick “ be ordered to pay, to the value of the property so appropriated, whatever deficiency there may be in satisfying the amount secured by said mortgage upon sale oí said mortgaged premises.”
    Now, whether the subject of the action be the notes, the mortgage, or the mortgaged premises, Altiek’s transaction, in purchasing of Penniman, had no connection with it, because the property purchased by him had been dissevered before the mortgage was executed, and formed no part of the mortgaged premises, and is not sought to be sold or otherwise affected in this action.
    The object is not to settle any right, interest, $r lien which Altick may now have or claim in or upon the mortgaged premises, but to obtain a personal judgment against him for damages.
    There is no privity between the defendants. There is no common interest centering in the point in issue.
    Altick has no interest in the subject-matter of the. controversy, and the cause of action against him is pot connected with it.
    The object of the petition is not single,, but twofold, viz., to enforce a lien upon Penniman’s property, and for a separate money judgment against the other defendants.
    Upon this state of facts, we may fairly rely upon the authorities cited by plaintiff’s counsel to show that his petition is multifarious.
   Rex, J.

The important questions in this case are:

1. Has a vendee, in possession of real estate, under a written' contract for the conveyance of the same to him, by the vendor, upon the performance by the vendee of certain stipulations therein contained, the right to sever, remove, and dispose of valuable fixtures, which were, at the time the contract was made, part of the real estate agreed to be conveyed to the vendee, and which, by the terms of the contract, the vendee, upon the execution and delivery of the conveyance by the vendor, was to reconvey to the vendor, by way of deed of mortgage, to secure the payment of the purchase money ?

2. Are purchasers of such fixtures, with notice of the rights of the vendor, under such contract, liable to the vendor for the value of the fixtures so purchased of the vendee ?

3. Can the vendor, after the execution and delivery to him, by the vendee, of a mortgage, in accordance with the stipulations of the contract, and after the condition of the mortgage is broken, proceed in one and the same action against the mortgagor and the purchasers of such fixtures, to foreclose the mortgage, sell the mortgaged premises, and, in thet event of a diminution of the’value of the security by such severance and sale, as against such-purchasers, to subject the value of such fixtures to the payment of any loss such mortgagor may sustain by reason of such diminution in value of the security ?

4-. If such right exists in the plaintiff, in what order may the payment of the value of the fixtures purchased be enforced against the purchasers ?

Without attempting to determine the rights of vendees in possession of real estate, under contracts of sale, in ordinary cases, it is quite clear that under the contract set out in the amended petition in this case, the vendee had no right to change the condition of the property, in so far as the distillery and fixtures therein contained were concerned, without the knowledge and consent of the vendori The record in the case discloses the fact that the fixtures of the •distillery, after they were severed and removed therefrom, were of greater value than the remainder of the mortgaged premises; including the building in which the fixtures were •at the time the contract of sale was made, and hence the reason for the provision in the contract, that the description of the real estate, to be covered by the mortgage, should include the distillery and fixtures therein contained, is readily perceived.

Under'this contract, as to all persons having notice of its terms and conditions, the right of the vendor to subject the value of the fixtures purchased by such persons of the vendee, to make up any loss sustained by him on accqunt ■of the diminution in value of the premises by reason of their removal, the vendor being guilty of no laches, is as perfect as that of a mortgagee, whose mortgage has been properly placed on record. In the latter case, it is held by the Supreme Court of Pennsylvania, in Hoskin v. Woodward, 45 Penn. St. 42, that the record of the mortgage affects the purchaser of a fixture from mortgaged premises, with the knowledge of the existing lien.

The right of a mortgagee to recover of purchasers from the mortgagor, the value of fixtures severed and removed from mortgaged premises, whereby the value of the security has been diminished to the injury of the mortgagee, has been sustained by the courts of other states in the following well-considered cases: Hoskin v. Woodward, above cited; Cole v. Stewart, 11 Cush. 181; Van Pelt v. McGraw, 4 Comst. 110; Rogers et al. v. Gillinger et al., 30 Penn. St. 185; Gore v. Jenness et al., 19 Maine, 53; Smith v. Goodwin, 2 Greenleaf, 175 ; Gray v. Holdship, 17 Serg. & Rawle, 413. This question has also been authoritatively settled in this state, in Allison v. McCune, 15 Ohio, 726.

The cases of the Commercial Bank of Lake Erie v. The Western Reserve Bank, 11 Ohio, 444; Nellons et al. v. Truax et al., 6 Ohio St. 97, and Anketel and wife v. Converse et al., 17 Ohio St. 11, establish, as to purchasers of incumbered real estate, “ that the several purchasers of incumbered property are liable to the payment of the lien upo.n it, aecording to the inverse order of time in which they acquired ownership.” The reasons urged for the adoption of this rule, in the cases cited, apply with equal force to cases of purchases of fixtures from mortgaged premises, and as we-hold in this case that the plaintiff, as vendor, can enforce the same remedies against purchasers of fixtures from hisvendee, having notice of his rights uuder the contract of sale, the same rule will apply.

Having settled the principles, which-are decisive of this-ease on its merits, a brief review of the rules of pleading-under the code, is deemed necessary to determine the questions arising -out of the assignments of error in the case, as presented in the plaintiff’s petition, for the decision of thiseourt.

The errors claimed in this court ,are :

1. That the Court of Common Pleas erred in sustaining the demurrer of the defendant, Altiek, to the amended petition of the plaintiff.

2. That the District Court erred in affirming the judgment of the Court of Common Pleas.

3. That the District Court erred in affirming the judgment of the Court of Common Pleas, dismissing the plaintiff’s petition as to Daniel Altiek. The points made in the-Court of Common Pleas by the demurrer of the defendant,. Altiek,,to the plaintiff’s amended petition, are:

1. That several causes of action are improperly joined in-the amended petition.

2. That the amended petition does not state facts sufficient to constitute a cause of action.

The matters set out in the several causes, of action contained in the petition, although they consist of a number of circumstances, yet, together, they constitute, in our opinion, but one distinct subject of action, and that distinct subject is the application of the value of the whole of the mortgaged premises to the payment of the debt secured by the mortgage, and hence the amended petition would not, even at the common law (Van Sant. Plead. 341), be liable to the objection claimed in the first cause of demurrer,. much less under the liberal provisions of section 80 of the-code. The facts stated in the plaintiff’s amended petition-are substantially the same as those given in the statement of facts in this case, and we are of opinion that those'facts, if made out in proof, would be sufficient to sustain a verdict for the plaintiff. The judgments of the District Court and the Court of Common Pleas are therefore reversed and the cause remanded for further proceedings.

Day, C. J., McIlvaine and White, JJ., concurring. Welch, J., not sitting.  