
    Moses Gregory v. Sarah Gregory et al.
    Where a husband, for a valuable consideration, mortgages directly to his wife a certain part of his farm; and such mortgage being duly recorded, the wife afterward unites with the husband in an absolute deed of conveyance of the entire farm to a purchaser, she joining with her husband in the granting part of the deed containing apt words of conveyance, and in the testatum, clause also releasing dower in the whole farm: Held, that in the absence of any ingredient of fraud, accident, or mistake in and modifying the case as above stated, the conclusion of law thereon is that the wife, by joining her husband in such deed of conveyance, relinquished to the purchaser all her title to, and interest in, the whole farm, legal and equitable, vested and inchoate.
    Error to the district court of Licking county.
    The case is stated in the opinion of the court.
    
      Follett & Follett, for plaintiff in error:
    1. All the right, title and interest which Mrs. Gregory acquired under or by virtue of her mortgage from her husband in the thirty-five acres, as well as her contingent right of *dower in the balance of the one hundred and sixteen acres, vested in Moses Gregory by virtue of the deed therefor from Madison Gregory and wife. At the time of the conveyance her title under the mortgage had become absolute at law, by the non-performance of the condition therein, and she had a legal title and estate in the thirty-five acres, and could have recovered in ejectment, had she not joined in the conveyance. She could not have done so after joining in that conveyance. Smith and wife v. Handy, 16 Ohio, 232-236 ; 18 Pick. 9; 1 Washburn on Real Property, 510, 511, 519, note 4 and cases there cited, 520, note 2 and cases there cited. The language of the deed is broad enough to include Mrs. Gregory’s entire interest in the land. See also 18 Penn. St. 394; 15 Mass. 236; 14 Pick. 381, 382; 8 Pick. 143; 7 Blackf. 210; 2 Ohio, 223 ; 15 Ohio 736, 757.
    J 2. Mrs. Gregory must be held to have intended what the legal ■effect of her deed imports, taken most strongly against herself, the grantor, and so construed as to give effect to every part—the granting part as well as the testatum clause, and can not now be allowed to set up any claim under her mortgage as against the purchaser or his assigns. 17 Ohio, 105; 4 Allen (Mass.), 440, 444; 11 Paige Ch. 459; 9 B. Mon. 412; Wright v. Arnold, 14 B. Mon. 643.
    3. As to consideration: Mrs. Gregory and her husband having received the consideration money for the whole farm, the presumption is that she either received and retained the amount due upon her mortgage debt, or permitted her husband to retain it for his ■own benefit.
    4. The record shows that the court below decided that the deed, by its terms and upon its face, in no wise affected Mrs. Gregory’s mortgage. Therefore the questions of fact were immaterial. The record showing this, it would be a violent presumption that the decision was based upon proof of fraud or mistake, or that such inquiries were made at all, or that any testimony was given on the issues of fact.
    
      J. Buckingham., for Mrs. Gregory:
    1. As the record does not disclose the evidence upon the issues as to fraud and mistake, in the court below, this *court can not know whether there is error in the judgment or not.
    2. The court did not err in holding that the deed did not operate “ to extinguish the right and title of Sar.ah Gregory under her said mortgage,” etc.
    The mortgage given by husband to wife was good in equity, and in equity only. 10 Ohio, 372; 20 Ohio, 518; 10 Pet. 583; Lucas v. Lucas, 1 Atk. 270; Mews v. Mews, 21 E. L. &. E. 556, 558, 559. Mrs. Gregory had no estate or title in the thirty-five acres, even after condition broken, which she could convey, unless to one to whom at the same time she assigned the mortgage debt. And it is not pretended that she assigned or intended to assign her claim to Moses Gregory.
    3. The circumstances indicate that she had no intention to do more than relinquish her dower. No mention is made of the mortgage in the deed. This is a strong circumstance to show that it was not intended to affect the mortgage.
    4. It does not appear that any consideration was paid to her to give up the mortgage.
    5. Full effect is given to the deed, and every part of it, by considering it as a release of dower only. To give it any greater effect, is to do violence to the natural import of the words.
    
      6. The words used are not such as do, in law, or can release the-mortgage or convey the lien. (1.) Mrs. Gregory could not convey her interest under the mortgage, separate from her debt, even had she been an ordinary mortgagee; much less, having only a sort of declaration of trust from her husband for her security. There-is nothing to show that she intended to assign the debt to Moses ; and without that she had no estate under the mortgage in the land which she could convoy. (2.) The mortgage could not be released without the use of some apt words, and they are not to-be found in the deed. The law will not infer an intent to release a lien from the use of words of grant merely, where full effect may be given to the words, and the deed operate without so extending the meaning of the words.
    The following cases sustain the views above given: Aymar v. Bill, 5 Johns. Ch. 570 ; Power v. Lester, 23 N. Y. 527, 533.
   *Brinkerhoee, J.

On the first of December, 1855, Madison. Gregory, being then the owner in fee of a farm of one hundred and sixteen acres, in Licking county, executed to his wife, Sarah Gregory,, a mortgage in due form on thirty-five acres of said farm, as her security for a loan of $800 then made by her to her husband; and the mortgage was soon afterward duly recorded. By the terms of the mortgage the loan secured by it was to be repai'd December 1,1857..

September 25, 1858, nearly ten months after said mortgage had become absolute by reason of the husband’s failure to repay to his-wife the loan secured by it, Madison Gregory, being still the owner of the farm, subject to his wife’s mortgage on thirty-five acres-thereof, joined with his wife in the execution of an absolute deed, of conveyance of the entire farm to the plaintiff, Moses Gregory. In this deed the wife joined in the operative words of conveyance; thelanguago being: “Know all men,” etc., “that we, Madison Gregory and Sarah his wife, of,” etc., “in consideration,” etc., “have sold, and by these presents, do grant, bargain, sell, and convey unto the-said Moses Gregory, his heirs and assigns forever,” etc. Then follows a description of the premises, the ordinary habendum clause, and covenants of general warranty by the husband to the grantee, and concludes with the testatum clause, in these words: “In testimony whereof, the said Madison Gregory and Sarah Gregory his wife, who hereby relinquishes her right of dower, have hereunto* set their hands and seals,” etc.*

About seven months after this conveyance by Madison Gregory and wife to Moses Gregory, to wit, on the 28th of April, 1859, the latter sold the entire farm to one Samuel Dolph, and conveyed the same to him by deed in fee simple, with covenants against incumbrances and of general warranty; taking from Dolph a mortgage to secure deferred payments. Default having been made in these payments, Moses Gregory brought his action in the common pleas of Licking county to foreclose the equity of redemption and for the sale of the premises, and for the application of the proceeds of the sale to the payment of the purchase money due to him *from Dolph; and making Dolph and Madison Gregory and Sarah his wife parties defendant.

Mrs. Gregory answered, claiming, in substance, as and matter of law arising on the facts just stated, a priority and superiority of lien on the thirty-five acres, by virtue of the mortgage to her, notwithstanding the deed of herself and husband to the plaintiff; and she also filed a cross-petition against the plaintiff for relief against said deed on the ground of fraud and mistake.

On this, answer and cross-petition, the plaintiff, in reply, took ^ issue.

On the hearing of the case in the common pleas, that court ordered that the thirty-five acres covered by the mortgage to Mrs. Gregory, and the remainder of the whole farm of one hundred and sixteen acres, be sold separately; and that the proceeds of the sale of the thirty-five acres be brought into court to abide a final decree of distribution. This was done. The amount realized from the sale of the thirty-five' acres was $900. And the case having gone into the district court by appeal, that court, as it seems from the record, without passing on the questions of fact made in the pleadings of the parties as to the fraud and mistake, found and held as follows: “ That the said Madison Gregory and Sarah Gregory did execute and deliver to the said Moses Gregory, at or about the date thereof, the deed, a copy of which is attached to and made a part of the reply of the said Moses Gregory, and the court here find, as a matter of law, that said deed did not, by its proper construction, upon its face, operate to extinguish the right and title of said Sarah Gregory under and by virtue of her said mortgage made by Madison Gregory, and set forth in her answer, and also find that said mortgage is a good and valid lien, in equity, against the plaintiff, notwithstanding said deed, so made and delivered by said Madison Gregory and wife to said plaintiff, and that said Sarah. Gregory is entitled, in equity, to set up the same, in this case, against said plaintiff. To which finding upon the law the plaintiff excepted, and his exception is here noted. That there is due from the said Madison Gregory to the said Sarah Gregory, upon the said note-—interest being cornputed to the first day of this term—*the sum of fourteen hundred and four dollars and forty cents, and that the proceeds of sale of said thirty-five acres ought to be applied to the payment thereof, and to be credited as so much paid upon the judgment rendered in the said court of common pleas in favor of the plaintiff against said defendant, Samuel Eolph. And the court further find, that on the payment to the said Sarah Gregory of the said sum of nine hundred dollars, the said Moses Gregory is entitled, in equity, to be subrogated in that sum to the claim of the said Sarah Gregory against the said Madison Gregory.”

The aforesaid finding of the district court, as matter of law, is assigned for error.

We are of opinion that the district court did err in finding, as a matter of law, that said deed” of Mrs. Gregory and husband “ did not, by its proper construction upon its face, operate to extinguish the right and title of Sarah Gregory under and by virtue of her said mortgage.”

' It is possible, as a matter of fact, that she may have been mistaken, misled, deceived, and defrauded. If so, she will have the opportunity to make it so appear on the retrial of the case. But regarding the case as presenting a question of law arising simply on the face of the deed of herself and husband, it seems to me that if it had been her actual intention to divest herself of, and to vest in Moses Gregory, all her title and interest in and to the entire farm, however such title or interest may have been derived, and whether legal or equitable, vested or inchoate, she could hardly have found more appropriate means legally to effectuate that intention than simply to join with her husband in the execution of just such a deed as this. The deed seems to have been made in strict conformity to the provisions of the statute of this state regulating the conveyance of a wife’s interest in lands, and to the authoritative decisions made under it. 3 Curwen’s Stat. 2449, and notes. She joined in the granting part of the deed, containing apt words to convey whatever title or interest she had in the entire farm, or in any part thereof; and in the testatum clause she released her inchoate right of dower in the whole.

The judgment of the district court will be reversed, and the *case will be remanded to that court for another trial of the issues made, or to be made by its leave.

Scott, C. J., and Day, White, and Welch, JJ., concurred.  