
    Brook et al. v. Gregg, Assignee, et al.
    
      Probate court — No jurisdiction to order sale of life estate, when— Owners of life and remainder estates join in mortgage— Remainderman assigns — Assignee aslcs sale of remainder estate.
    
    The owner of an estate for life and the owner of an estate in remainder in the same land, joined in a mortgage upon both estates, and the remainder man afterward made an assignment of his estate for the benefit of creditors, and the assignee filed his petition in the probate court against the assignor, the mortgagee, and the owner of the life estate, praying for an order to sell such remainder, that such mortgagee be compelled to answer and ask for a sale of both es.tates under his mortgage, and that the life estate be sold as upon execution. Held: That the probate court had no jurisdiction to order a sale of the life estate upon the petition of the assignee.
    (Decided November 13, 1900.)
    
      Error to the circuit court of Fayette county.
    In December, 1897, Pope Gregg, assignee in trust for the benefit of the creditors of Elijah E. Brock, assignor, filed his petition in the probate court against said assignor and Susannah Brock, Leon H. Houston, and certain other lien holders, and after averring the assignment, the qualification of the assignee, etc., continued as follows in his amended petition:
    “Said plaintiff further says that the said Elijah Evan Brock is the owner in fee simple, subject to the life estate therein of the said defendant Susannah Brock, of a tract of land conveyed to said plaintiff by said deed of assignment, bounded and described as follows to-wit(Description of said lands 80 acres omitted.)
    “Said plaintiff further says that he is informed and believes and therefore avers that at once after the death of Evan Brock, from whom said defendants, Elijah Evan Brock and Susannah Brock, derived their title to said real estate, said defendant, Susannah Brock, took immediate possession of said tract of land above described, as life' tenant under the will of said Evan Brock deceased, and ever since said time has been in exclusive possession and control thereof, and has enjoyed the benefit of her life estate therein.
    “That at the time said Susannah Brock entered into possession of said land as above stated, the same was insufficiently drained, and the whole thereof for farming purposes, was wet and unproductive and the fencing thereon was out of repair and very defective, and that for the purpose of a proper enjoyment of her estate therein, and to render the same productive and profitable, it was necessary for the said Susannah Brock, or those holding under her, to build new fences and repair the old ones, to properly drain the same by digging ditches and constructing tile drains, and. otherwise to improve said land.
    “That afterwards, during the years of 1886 to 1896, said land was greatly improved in the respects above named by the defendant, Elijah Evan Brock, and a large sum of money was by him expended therefor; a schedule of said improvements and the cost thereof is hereunto attached marked Exhibit “A” and by this reference made a part of this pleading.
    “That in addition to the above payments and expenditures, said defendant, Elijah Evan Brock, also paid the taxes on said land for the years 1886 to 1892, amounting in all to the sum of $441.71, and also, in addition to the above, certain special assessments against said land, made for the purpose of improving a county ditch known as the “Brock Ditch,” which in all amounted to the sum of $198.30, and plaintiff avers that all-the payment of taxes and assessments were made by the said defendant, Elijah Evan Brock, for the purpose of protecting his interest in said property, and to prevent said land being sold, to pay the same.
    “That in order to procure the money to pay for the several amounts expended for the taxes and the improvements above set forth, it became and was necessary to mortgage the said land, which was done by the agreement of this defendant, Elijah Evan Brock, and the said Susannah Brock, a mortgage being first given to one Charles Beck, which said original mortgage was afterwards increased to the sum of $1,100.00' and a mortgage for that amount was given to the said Leon H. Houston, and said plaintiff avers that this last named mortgage, by the renewals and increase thereof from time to time, now represents the sums of money spent for the payment of the taxes and assessments, and for the improvements of the said land all as hereinbefore stated.
    “Said plaintiff further avers that while it was necessary, in order to procure said sums of money on said real estate, to mortgage the interest of Elijah Evan Brock therein in fee in remainder, yet it was agreed and understood by and between said Elijah Evan Brock and said Susannah Brock that his interest therein was pledged as security only for the debt of the said Susannah Brock and that he was only surety for the same, and that said debt was not incurred for the benefit of the said Elijah Evan1 Brock, but for the benefit of said Susannah Brock to make the same productive and yield to her an income therefrom.
    “Said plaintiff further avers that said defendant Susannah Brock is of the age of-years, and that she has no other property real or personal except her life estate in the land above described, and has no way or means to pay said mortgage indebtedness, except upon a sale of her life estate in said land. .
    “Said plaintiff further avers that a sale of the fee in remainder of said Elijah Evan Brock in said land separate from the life estate of said Susannah Brock therein would be unjust and inequitable, and the same would have to be sold at a great sacrifice, and would cause great and irreparable loss to the creditors of the said Elijah Evan Brock.
    “Wherefore plaintiff prays that there may be a finding by the court as to whom, as between the defendants, Elijah Evan Brock and Susannah Brock, the said mortgage indebtedness is chargeable, and the amount that is chargeable to each of said defendants, and that said defendant Leon H. Houston be required to file an answer and cross petition setting up the' said indebtedness due to him under said mortgage, and asking for a sale of the interests of both defendants Elijah Evan Brock and Susannah Brock, in said real estate for the satisfaction thereof, or that in default of such answer and cross petition, that said defendant Leon H. Houston shall be decreed to have waived his lien upon the interest of said Elijah Evan Brock in said real estate as to that part of said indebtedness due and owing to said Leon H. Houston ffom said Susannah Brock.
    “That said plaintiff be ordered to sell the interest of the said Elijah Evan Brock in said real estate, and that the court order the interest of said Susannah Brock sold as on execution; that the liens be considered by the court, and their respective priorities determined, and their payment ordered out of the proceeds of the sale; and for all proper relief.”
    By an amendment to the amended petition the following is added: “Said plaintiff further says that the mortgage of the said Leon H. Houston is conditioned as follows: ‘provided further that if the grantor or grantors shall fail to pay the interest on the principal note herein described, or fail to pay the taxes * * * or premiums for insurance * * * then in either of said cases the principal note herein described, together with interest to the time of such covenant and condition broken, for the interest notes or so much thereof as accrued to such time, shall immediately become payable and collectible by the holders thereof, and the same may be immediately enforced by suit at law or proceedings to foreclose the mortgage, at the option of the holders "Of the notes above described or any of them.’
    “Said plaintiff further says that an interest note secured by said mortgage for the sum of eighty-eight dollars, due on or about December 2, 1898, is past due and unpaid, and that by the conditions of the said mortgage the whole amount thereof is now due and payable, and that said mortgage may be foreclosed immediately.”
    To this amended petition the following demurrer was filed:
    “Now comes the defendant, Susannah Brock, and demurs to the amended petition of the plaintiff, and says that the same does not state facts sufficient to constitute a cause of action in favor of plaintiff and against said defendant, or to entitle the plaintiff to .any relief against her.”
    The probate court sustained the demurrer and dismissed Susannah Brock from the action.
    The court of common pleas reversed the judgment of the probate court, and the circuit court affirmed the judgment of reversal, and thereupon she filed her petition in error in this court, seeking to reverse the judgments of the circuit court, and of the court of common pleas, and for an affirmance of the judgment of the probate court.
    
      John Logan, for plaintiffs in error.
    The question for determination is whether under "Section 6851, Revised Statutes, the probate court may entertain an action by the assignee for the benefit of creditors of the owner of an estate in remainder to compel the life tenant to disencumber the remainder from the lien of a mortgage on both estates, alleged to have been executed by the remainderman merely to pledge his estate as security for the debt of the life tenant.
    The power which it is sought to have the probate court exercise is not comprised within its constitutional jurisdiction. Art. 4, Sec. 8, of the Constitution.
    Nor does Chapter 6, of Title 4, of the Revised Statutes, Sections 523, et seq., sanction such action.
    “The real estate to be sold,” is obviously that which section 6350 directs the assignee to sell, to-wit, “the real estate assigned.”
    Whatever questions are involved as to the title to such property, are cognizable in the probate court; but none other; and the persons in interest, whom the statute directs to be made parties, are the assignors, his wife, all other lien creditors, and persons having or claiming an interest in or lien upon the property sought thus to' be sold; all persons involved in any questions of title affecting that estate.
    The life tenant as such has no interest in the title to the remainder.
    While it is apparent that the debt is not due; still in no case is the jurisdiction given to the probate court to entertain such action; but the authority to hear such case is “only conferred on the courts of common pleas, they being courts of general jurisdiction in matters of law and equity, and therefore more competent, from the character of their judges, constantly employed in the exercise of such jurisdiction, to hear and determine such matters.” Spoors v. Coen, 44 Ohio St., 497.
    If the probate court may not entertain an original action under the provision named, it certainly may not take cognizance thereof when joined to a cause of action to sell assigned real estate under section 6351.
    The theory of the assignee has been that the probate court has jurisdiction under the act of 1896, 92 O. L., 665, in mortgage foreclosure, so that the mortgagee may be required by cross-petition to force sale of the life estate, and thus, in the probate court, work out the objects of the action. The contention is that an assignee for creditors may, in an action in the probate court, mandamus a mortgagee to determine his contract and foreclose his mortgage, compel the principal to pay his debt, for which the assignor is, liable as surety, and sell the assigned real estate.
    So far as the mortgagee is concerned, the courts have no power to affect the obligation of his contract; if an option be given in his mortgage to declare his, debt due in any contingency before the term of the debt, that option belongs to the mortgagee and the courts have no right to say how it shall be exercised; otherwise, there would be no option to the mortgagee. Wilkins v. Ohio Nat. Bank, 31 Ohio St., 565.
    The theory that jurisdiction may be conferred by consent, where it is otherwise lacking, has been repudiated by this court. Gilliland v. Sellers, 2 Ohio St., 223; Railroad Co. v. Marshall, 11 Ohio St., 497; Evans v. Iles, 7 Ohio St., 234; Spoors v. Coen, 44 Ohio St., 497; Steamboat v. Long, 18 Ohio St., 521.
    The probate court has not been given the jurisdiction invoked, and the common pleas and circuit courts erred in reversing the judgment of the probate court.
    
      Gregg, Patton & Gregg, for defendants in error.
    It has been insisted by counsel for plaintiffs in error, that the probate court of Payette county was wholly without jurisdiction to grant the relief sought by the assignee in this case, under the facts stated in the petition as amended, for the reason that no such jurisdiction is conferred on said probate court by law.
    Susannah Brock, the owner of the life estate, that was encumbered by the mortgage, and as set forth in the petition, the principal debtor, was certainly a party in interest within the meaning of Section 6351.
    
      The condition of the mortgage being broken, tbe only interest passed by tbe assignment to tbe assignee, and tbe only interest remaining in tbe life tenant, were tbeir respective equities of redemption. Tbe legal title to both interests were merged in tbe mortgagee
    Both parties being liable, tbe life tenant as principal, tbe other as surety, for tbe same debt, and it being necessary in tbis action to order it paid, can it be claimed that Susannah Brock was not a party in interest? How could tbe court determine tbe questions otherwise?
    Tbe inchoate right of dower of tbe wife or widow of 'the assignor, is a separate interest that does not pass by tbe deed of assignment. Yet tbe court can by decree bar such right of dower in tbis action.
    
      Shroyer v. Richmond, 16 Ohio St., 455; Kelley v. State, 6 Ohio St., 269; Ries v. Bank, 10 C. C., 656; 5 Circ. Dec., 20; Farwell v. Dry Goods Co., 11 C. C., 100; 5 Circ. Dec., 303; Clapp v. Banking Co., 50 Ohio St., 528; Saylor v. Simpson, 45 Ohio St., 141; Brown v. Trottner, 11 C. C., 498; 5 Circ. Dec., 222; Havens v. Horton, 53 Ohio St., 342; Baker v. Lamkin, 11 C. C., 103; 5 Circ. Dec., 54; Doan v. Biteley, 49 Ohio St., 588.
    Tbis case comes under tbe rule laid down in case of Davis v. Davis, 11 Ohio St., 391; Clapp v. Banking Co., 50 Ohio St., 528.
    If Section 6351 does not confer tbe jurisdiction, certainly tbe special act above is broad enough to confer such jurisdiction.
    Tbe question made here will have to be determined either by tbe probate court or the court of common pleas of Fayette county, before tbe assignee will have discharged bis trust according to law. To tbe extent that the mortgagee seeks to hold the estate in remainder for the payment of his debt, it is clear that he would have to work out his equities in the probate court. Lindemann v. Ingham, 36 Ohio St., 1; Sayler v. Simpson, 45 Ohio St., 141.
    It is also clear that the court, the mortgagee being properly in court, could by decree extinguish his-rights under his mortgage and sell the property free therefrom, and he would have to look to the fund in the assignee’s hands for the satisfaction of the same, and that said mortgagee could be compelled to accept the amount of his debt whether due or not.
    But before a decree could be rendered that would bind the life tenant she would also have to be made a party. ■
    By joining in the execution of the mortgage the life tenant placed her property in a situation that gave the court jurisdiction, that would not exist otherwise. The execution of the mortgage was the act of the party, but the result that followed such execution was by operation of law.
    It is also true that a court of chancery, having jurisdiction of the parties acts in personam and will not hesitate to grant relief although the property is without the jurisdictional limits of the court. Bispham’s Equity, 65; Muller v. Dows, 94 U. S. (4 Otto), 444; Bispham’s Equity, p. 410.
    This being true a court of equity would order a sale of such interest to satisfy such liens. Why should the assignor’s rights be destroyed by changing the form of the security and pledging his property for the payment of the debt.
    It is conceded that the assignee, by paying the mortgage debt, would be entitled to be subrogated to all the mortgagee’s rights thereunder, but that does not furnish an adequate remedy in this case. The only adequate remedy is the form of action adopted in this case, the equitable remedy of exoneration. Fetter on Equity, p. 254; Bispham’s Equity, p. 390, 391; 93 N. Y., 225; 131 N. Y., 262; 30 N. E., 102; 23 Pa. St., 294; 124 U. S., 61 N. H., 356; Am. and Eng. Ency. Law, vol. 7, 346; Stump v. Rogers, 1 Ohio 533; McConnell v. Scott, 15 Ohio, 401; 123 Ind., 397; 1 Ch. Ca., 223.
   Burket, J.

The answer of Leon H. Houston set up his mortgage, but did not ask its foreclosure, and he did not elect to enforce his option to have the principal note become due and payable by reason of the nonpayment of the interest note for eighty-eight dollars, and the other interest notes as well as the principal were not yet due.

Upon this state of facts was the demurrer properly sustained? Or in other words, had the probate •court jurisdiction to adjudicate as to the rights and liabilities of Mrs. Brock? She has a life estate in the land and her son has an estate in remainder in the same land. Her estate is separate and independent of his. It is not a right in the land like unassigned dower, but is an estate by itself. Her estate must end before his can begin as an estate in possession. While his estate is vested, the beneficial interest as an estate in possession must await the extinction of her •estate. The two estates are to be enjoyed, not at the same time, but in succession, hers first, his afterward-. His estate passed by his deed of assignment to his assignee, to be administered under the jurisdiction and orders of the probate court. Her estate remained in herself, subject to the mortgage lien upon it in favor of Mr. Houston. Her estate is not a lien on his; neither is his a lien on hers. As between the assignee and Mrs. Brock, there is no question in regard to the title to her life estate requiring a settlement. Her title is conceded beyond question to be that of a life estate, nothing more, nothing less. A decree of a court is therefore not required to settle any question as to her estate. No wife or widow of the assignor has any dower estate in her life estate. Her life estate is not to be sold by the assignee under the deed of assignment, and it was not contracted to be sold by the assignor prior to the assignment.

It is therefore clear that her life estate is not included either in the words or spirit of section 6351, Revised Statutes. So much of that section as affects, this question is as folows:

“The probate court shall order the payment of all incumbrances and liens upon any of the property sold, or rights and credits collected, out of the proceeds, thereof, according to priority.
“Provided, that the assignee may, in all cases, where the real estate to be sold, or which may have been contracted to be sold by the assignor prior to the assignment, is incumbered with liens, or where any questions in regard to the title, or the dower estate of' the wife or widow of the assignor, require a decree to settle the same, commence a civil action therefor in the common pleas court or probate court of the proper county, making all persons in interest, including the Avife or widow of the assignor, parties to such proceedings ;
“And upon hearing, the court shall order a sale of the premises, of the completion of the contracts of' sale made by the assignor, the payment of the incumbrances and the contingent dower interest of the wife or widow, subject to the proviso hereinafter contained, and determine the question involved in regard to the title of same;
“And the proceeds of all the real estate so sold, after payment of heirs and incumbrances, and the- contingent dower rights and interest of such wife or widow-, as ordered by such court shall be reported to the probate court by the assignee, and disposed of as provided in this chapter.”

The question as to the jurisdiction of the probate court in this case, under this section, is the same as if she had a life estate in one tract of land and her son had an estate in remainder in another, and both bad joined in a mortgage on both estates, and the son .had afterwrard made an assignment for the benefit of creditors. In such a case it could not reasonably be -claimed that the assignee could, by petition in the probate court, force a sale of her life estate. The confusion in this case has arisen by failing to realize that the life estate is independent of the estate in remainder, as much so as if the life estate and estate in remainder wrere in two different tracts.

It is argued by counsel for defendants in error that if the probate court has no jurisdiction to order a sale of her life estate under said section 6351, jurisdiction is conferred by the special act of April 27, 1896, 92 O. L., 665, conferring jurisdiction on the probate court of Payette county concurrent with the court of common pleas “in all actions (1) for the partition of real property, and (2) for the sale of real or personal property under a mortgage, lien or other incumbrance, with the same jurisdiction as the court of common pleas to determine all questions, whether legal or equitable that may arise in reference to said property.”

Remembering that the controversy under the-amended petition, and the amendment thereto in this case is between the assignee and Mrs. Brock, and not. between Mr. Houston, the mortgagee and Mrs. Brock, it, must be clear that the action of the assignee against-Mrs. Brock is not for the sale of her real estate under a mortgage, a lien, or other incumbrance, because he has no mortgage, no lien, and no other incumbranceon her life estate, and he pleads none. He therefore; has no right of action against her, as to her life estate, and no question either legal or equitable can arise with reference thereto as to him. Mr. Houston, asks no relief on his mortgage and does not pray for-its foreclosure, or for an order to sell her life estate.. His mortgage not being due, he has the right to await its maturity as to her life estate, and the assignee can not force him to foreclose his mortgage upon the life-estate.

In legal effect this is an action by a surety, the assignee, to compel the principal, Mrs. Brock, to discharge the debt secured by the mortgage to Mr. Houston, but the probate court has no jurisdiction of such an action, and if it had, the action can only be brought, after the debt is due.

It is urged that there was a merger of the life estate and remainder by reason of both joining in the-mortgage, but that could not work a merger in favor-of the assignee. He stands in the shoes of the remainderman, and not in the shoes of the mortgagee..

It is also urged that, as both are liable to Mr. Houston for the same debt, one as principal and the other as surety, it is necessary in this action to order the debt paid, and that Mrs. Brock is therefore a party in interest. That argument is not sound. As the probate court has no jurisdiction to sell her life estate, and has no jurisdiction to compel her. as principal to discharge her debt so as to save the surety, it has no jurisdiction to order the debt paid in so far as concerns Mrs. Brock; and the distribution of the proceeds of the sale of the estate in remainder, even though it should all go to Mr. Houston on his mortgage, does not concern Mrs. Brock, and she has no interest therein, and is not a proper party thereto.

When it is conceded, as it must be, that her life estate is not connected in privity or estate with his remainder, and that the assignee stands in the shoes of his assignor, and that the rights of the mortgagee do not inure to the assignee, it becomes clear that the probate court has no power to order a sale of her life estate upon the petition of the assignee.

It is urged that a sale of both estates together will produce more money for the creditors, and also for the mortgagee, than separate sales, and that, therefore, the probate court has jurisdiction to order the sale of both. This argument is not sound. As to the mortgagee, it is sufficient to say that he is not asking a sale of both estates under his mortgage, and there is no statute authorizing the assignee or the probate court to control his actions in this regard. He is of age and free to use his rights under his mortgage as he sees fit. If the assignee had a lien upon the life estate, he might then force a sale free of Mr. Houston’s mortgage, and compel him to look to the proceeds of such sale for payment, but the assignee has no lien on the life estate, and, therefore, can not force the sale thereof.

As to the creditors it is enough to say that they can not claim more than the proceeds of the sale of the estate conveyed by the deed of assignment. It often occurs that the sale of two separate adjoining pieces of real estate as one property, would produce much more than a separate sale of each, but that fact does not authorize the probate court to order a sale of both, upon the petition of the assignee of the owner of one of them. To so order would be in conflict with the rights of private property, and it is beyond the power of the general assembly to authorize such an order.

The probate court was right in its judgment, and the judgment of the circuit court, and of the court of common pleas will be reversed, and that of the probate court affirmed.

Judgment reversed.  