
    Farmers’ and Merchants’ National Bank v. Wallace.
    
      Real property — Partition—Husband and wife — Conveyance to — Mortgage by husband — Possession—Notice—Tenants in common — National bank — Power to take mortgage. *
    1. W. and his wife were in possession of lands owned by her father at the time of the father’s death. After the father’s decease, the heirs at law of the decedent agreed to divide his lands among themselves, and for that purpose, in the year 1854, executed deeds of quit-claim to each other. Certain of the heirs, in their deeds to W.’s wife of their interest in the land of which she was in possession, inserted without her knowledge or consent, the name of W. as a joint grantee with his wife, and vested in him the legal title to one undivided half of the granted premises, which deeds were duly recorded. W. had not until the year 1803, and his wife had not until the year 1883, any knowledge that his name was inserted in the deeds. In 1883, W. being- indebted to a bank on notes past due, in consideration of an extension of time for the payment of his indebtedness, and of a reduction of the rate of interest, gave the bank new notes in place of the old ones surrendered and cancelled, and . to secure the payment of the same,- executed to the bank a mortgage on .- the lands conveyed to him and his wrife jointly. The bank had no knowledge or notice of any claim or interest of the wife in the lands mortgaged, adverse to the title of W. as shown by the deeds to himself and wdfe; nor of any fraud or mistake in the insertion of his name in the deeds; nor of the manner of the acquisition of' the lands by W. and his wife, other than w'as shown by the records of the deeds. Held, 1. That the bank was entitled to be protected as a bona fide purchaser, for a valuable consideration, without notice. 2. That the bank acquired a lien upon the one undivided half part of the lands embraced in the mortgage.
    2. Under the laws of Ohio, when lands are conveyed to husband and wdfe jointly, they take by moieties as tenants in common.
    3. A mortgage of real e.state executed to a national bank, to secure an in- . debtedness previously contracted for which new notes are given by the debtor, is not in violation of the national banking law.
    (Decided May 10, 1887.)
    Error to tbe District Court of Tuscarawas County.
    Nancy Wallace, defendant in error, filed her petition in the court of common pleas of Tuscarawas county, against Josejih Wallace and The Farmers’ and Merchants’ National Bank of Uhrieksville, O., setting forth among other things, that she was a daughter and one of the heirs at law of Jacob Uhrich, deceased, and was then the wife of Joseph Wallace, one of the defendants. That Jacob Uhrich died seized of large estates in lands, among which were certain lands — described in the petition — situated in the county of Tuscarawas, and being parts of sections 33 and 34 of township 13, range 7, in the Steubenville land district. That all the heirs at law of Jacob Uhrich agreed to amamicable partition of the lands of which he died seized, and all the co-heirs agreed to convey to the plaintiff by quit-claim deeds their interest in the several tracts of land described in the petition, so that she might hold the same in severalty, as her share of the real estate of which Jacob Uhrich died seized, upon condition that she should quit-claim to them, in severalty, her interest in the remainder of the real estate. That, in pursuance of such agreement, she did execute to the other heirs ’quit-claim deeds, conveying to them in severalty her interest in all the lands-and tenements of which Jacob Uhrich died seized, except the lands described in the petition. That certain of the heirs at law of Jacob Uhrich fraudulently, and others of such heirs through mistake, instead of executing quit-claim deeds of their interest in the lands described in the petition, to the plaintiff in severalty, inserted in the deeds which they did execute, the name of ■Joseph Wallace as a grantee jointly with the name of Nancy Wallace, the plaintiff for the purpose of vesting in him jointly with his wife the legal title to a portion of such lands. That on or about the 22d day of March, 1883, Joseph Wallace executed to The Fanners’ and Merchants’ National Bank of Uliriclisville, a mortgage of the real estate of which he had thus become seized, to secure his indebtedness to th'e bank. The plaintiff in her petition, asked that the mortgage be held void as to the lands described in the petition, and thait the bank be enjoined from foreclosing the same. The answer of the bank denied all the material allegations of the petition, and alleged new matter in defense, which was denied in the plaintiff’s reply, and in the reply filed by Joseph Wallace. The court of common pleas rendered judgment in favor of the plaintiff. An appeal was taken by the bank to the district court, and the bank having requested the district court to state its findings of fact and its conclusions of law separately, with the view of excepting to its decision upon the questions of law involved, the court stated its findings of fact as follows:
    “In 1849 Jacob Uhrich died, intestate, leaving children then living, Benjamin Uhrich, Jacob Uhrich, Joseph Uhrich and Nancy ’Wallace, the plaintiff, wife of the defendant, Joseph Wallace; and leaving grand-children then living, Benjamin Ross, Adam Ross and Mary Ross, children of his deceased daughter, Rosanna Ross; Albert Blickensderfer, son of his deceased daughter, Susanna Blickensderfer, and Jacob Welch, John Welch and Sarah Welch; children of his deceased daughter, Mary Welch.
    “ Said Jacob Uhrich died seized of about 1100 acres of land, including that described in the petition.
    “ In 1847, said Jacob Uhrich put plaintiff and her husband in possession of the land described in the petition, and the family has continuously resided thereon ever since.
    . “ In 1854 the said heirs at law of said Jacob Uhrich agreed to divide the lands of said decedent among themselves, and to execute deeds of quit-claim to each other. For the purpose of said agreement they valued the entire estate to be divided, at $21,000, the share of each child living, and of the representatives of each deceased child, at $3,000. At the time of this agreement said Benjamin, Jacob and Joseph Uhrich owned each the 1-7 of said estate, by descent from their said father, and they together owned by purchase and conveyance from Jacob and Sarah Welch 2-21, making in all 11-21.
    “ In pursuance of said agreement, plaintiff and her husband conveyed by quitclaim to the other heirs. And in pursuance of said agreement the said Benjamin, Jacob and Joseph Uhrich, in March, 1854, anda few days after said agreement was made, conveyed by qxxit-claim their interest in said land described in the petition to said Nancy Wallace and Joseph Wallace. The consideration named in said deed is $3,000. Said deed was by the grantors delivered to said Nancy, and by her delivered to her said husband, who procured it to be transferred and recorded in Dec. 1854. Ever since its record,- the said deed has been kept in a stand-drawer at tke home of said Joseph and Nancy Wallace, on the said land. And in pursuance of said agreement, said Benjamin and Adam Ross, on the 28th of August, 1854, conveyed by quit-claim their interest in said land described in the petition to said Nancy Wallace and Joseph Wallace, which deed was transferred, recorded, and has been kept in the manner aforesaid.-
    “ Said Benjamin Uhrich procured an attorney-at-law to prepare the said deed from him and his two brothers to said Nancy’and Joseph Wallace, and by the direction of said Benjamin the name of said Joseph Wallace was, by the said attorney, inserted as a grantee therein. The name of said Joseph Wallace was so inserted, without the knowledge or consent of said Nancy Wallace, and no consideration, other than the execution of said quit-claims to said grantors, was paid to them, or either of them, by any one. The purpose of said Benjamin in having the name of said Joseph so inserted as a grantee, was to give the said Joseph credit in bank, in order that he, the said Benjamin, might use him, the said Joseph, as surety in bank.
    
      “ Said Nancy had no knowledge that her said husband’s name was so inserted in either of said deeds as a grantee therein until 1883, and after her said husband and her son failed in business, and being after or about the time when the mortgage was given, and she had no knowledge of the giving of the mortgage until one or two weeks after it was given. No consideration other than the execution of quit-claim as aforesaid, was paid to said Benjamin or Adam Ross, or either of them, by any one. Plaintiff is not now and never had been able to read, and neither of said deeds to plaintiff and her husband was ever read to plaintiff.
    
      “ On the 22d day of March, 1883, the defendant, Joseph Wallace, being indebted to the defendant, The Farmers’ & Merchants’ National Bank of Uhrichsville, Ohio, upon certain promissory notes then past due, and in consideration of an extension of time for the payment of his said indebtedness, and of a reduction of the rate of interest thereon from 8 per cent, to 6 per cent., executed and delivered to the said bank his notes and mortgage as alleged in the amended answer of the said bank, and the said bank then delivered up to said Joseph Wallace his former notes then and theretofore held by it, and received the said mortgage and the notes secured thereby, in full settlement of all balances of indebtedness so due from said Joseph Wallace to the said bank. At no time prior to the commencement of this acton did the said bank have any knowledge or notice of any claim or interest of plaintiff in any of said lands adverse to the title of said Joseph Wallace, as shown by the said deeds to him and plaintiff; and the said bank had prior to the commencement of this action no notice or knowledge whatever of any fraud or mistake in the insertion of the name of said Joseph in said deeds or either of them, and had no knowledge whatever of the manner of the acquisition of said lands by said Nancy and Joseph Wallace, other than what was shown by the records of said deeds. On the 22nd day of March, 1883, the said bank duly filed the said mortgage with the recorder of said Tuscarawas county, Ohio, for record, and the same was thereafter duly recorded.
    “All the heirs at law of said Jacob Uhrich, not herein before named as grantors, have by quit-claim conveyed their interest in said lands to the plaintiff. Said Jacob Uhrich had no knowledge, at the time he and his brothers executed said quit-claim to said Nancy and Joseph Wallace, that the name of Joseph was inserted therein as grantee, and did not learn thereof until 1883.
    “Said Joseph Wallace was not present when said deeds of quit-claim from the Uhrich brothers and from the Rows brothers, or either of them, were executed, and he had no knowledge that his name was inserted in them, or in cither of them, as a grantee, until 1863.
    “And as conclusions of law upon the facts as found as aforesaid, the court finds as follows:
    “The court being of opinion upon the facts so found that the said deeds from the Uhrich brothers and from the Ross brothers to the said Nancy Wallace and Joseph Wallace, conveyed no estate or interest in the said lands to the said Joseph Wallace, do find the law and the equity of this case to be with tbe said Nancy Wallace, plaintiff, and that the said The Farmers’ and Merchants’ National Bank of Uhrichsville, Ohio, acquired no lien upon or interest in the said lands described in the petition.”
    In the district court judgment was rendered in favor of Nancy Wallace, plaintiff, in accordance with the aforegoing findings of fact and conclusions of law, and the bank now seeks to reverse the judgment of the district court.
    
      T. D. Healea and J. T. O’Donnell, for plaintiff in error.
    1. The deeds vested in Joseph Wallace the legal title to the undivided one-half of thirteen twenty-first parts of the land described in the petition. “The mode universal in use by which one individual conveys his land to another is by deed.” 2 Black. Com. 293, 294; Williams Real Prop. 79, 94, 148, 186, 187, 250; 3 Wash. Real Prop. 233; Rev. Stats., Secs. 4106 et seq.
    
    2. The bank was a bona fide purchaser, for value, without “ any knowledge or notice ” of any equitable interest of Nancy Wallace, and is, therefore, protected in its rights as mortgagee. Anketel v. Converse, 17 Ohio St. 11; Lewis v. Anderson, 20 Ohio St. 281; Shorten v. Drake, 38 Ohio St. 76; 2 Pom. Eq. Jur., sec. 767.
    3. The delivering up and cancellation of the old notes, the extension of the time of payment, and the reduction of the rate of interest, were sufficient consideration for the new notes, to secure which the mortgage was given, to entitle the bank to protection as mortgagee. Carlisle v. Wishart, 11 Ohio, 172; Roxborough v. Messick, 6 Ohio St. 448; Pitts v. Foglesong, 37 Ohio St. 676; Shorten Drake, supra; Gilchrist v. Gough, 63 Ind. 576; s. c. 30 Am. Rep. 250.
    4. The occupation and possession of the land by Nancy Wallace with her husband, before and at the time of the making and delivery of the mortgage, was entirely consistent with her possessory title of record, viz: the conveyance to her and her husband jointly. The bank had a right to infer that she had such possession by virtue of the title created by such conveyance; and such possession was not referable to his marital rights when he held the legal title to an interest in the lands by virtue of the deeds which were of record. 3 Wash. Real Prop. 317; Williams v. Sprigg, 6 Ohio St. 585; 2 Pom. Eq. Jur., sec. 620.
    5. The proposition that partition deeds create no new title, is true only in a qualified sense. The law might be more accurately stated as follows: Deeds made for partition purposes only,- create no new title as between the parties to such partition. No reported case has gone further, unless the deed showed, upon its face, that it was made for the purposes of partition. In Dawson v. Lawrence, 13 Ohio, 543, the deed upon its face showed that it was made for the purpose of partition, and certainly was notice to the whole world. The rule asserted in Tabler v. Wiseman, 2 Ohio St. 207, and McBain v. McBain, 15 Ohio St. 337, that conveyances for partition purposes create no new title, has, in the late case of Hershizer v. Florence, 39 Ohio St. 516, been held not to be applicable in a case like the one at bar. Doyle, J., in announcing the opinion of the court, said: “ The rule asserted in Tabler v. Wiseman and McBain v. McBain, applicable to partition proceedings under the statute, that no new title is created thereby, does not apply to the deliberate conveyances of the parties, especially where there is an independent consideration for such conveyances.”
    6. The proposition that Nancy Wallace has title independent of the deeds, by virtue of the parol agreement to partition, is untenable. Such agreement was within the statute of frauds, and void; and there was nothing to take that agreement out of the statute because Nancy and Joseph Wallace took possession before the death of her father, and have ever since retained it. Freem. on Partition, sec. 397-401; 1 Wash. Real Prop. 430; Brown Stat. Frauds, sec. 71.
    7. Before Nancy Wallace can be entitled to relief, even though the bank had acquired no rights under its mortgage, she must show in herself some interest, legal or equitable, in the thirteen forty-second parts of land upon which the bank claims, its mortgage lien. Rev. Stats., sec. 4993.
    
      8. The conveyances to Joseph ’Wallace, even if there was no consideration moving from him, raised a constructive trust. 2 Wash. Real Prop. 470; and a bona fide purchaser from the trustee, for a valuable consideration, without notice of the trust, will hold the laud -discharged of the trust, as will also a mortgagee. 2 Story Eq. Jur., sec. 1195 et seq.; 2 Wash. Real Prop. 484, 485, 575; Newton v. McLean, 41 Barb. 285; Lewin on Trusts, 725, 726; Pom. Eq. Jur., sec. 770, 771.
    9. “Where a record title to property is in the mortgagor, and there is no evidence which brings home to the mortgagee the knowledge or notice that the mortgagor is not owner in fact, the mortgage cannot be assailed by reason of such undisclosed character of the title.” Alexander v. Rice, 52 Mich. 451; 2 Pom’s Eq. Jur., sec. 658.
    10. Nancy Wallace is estopped from claiming any interest in the thirteen forty-second parts of the land. 2 Pom. Eq. Jur. sec. 814; Cord’s Leg. and Eq. Rights Mar. Wom., sec. 246; Rosenthal v. Mayhugh,33 Ohio St. 155.
    
      F. Louthitt, for defendant in error.
    1. Nancy - Wallace, at the time of the execution of the mortgage, was, and for thirty years had been, in possession of the premises as owner.
    A purchaser of land in the possession of a third person, is chargeable with notice of the rights and equities, whatever they may prove to be, of the party so in possession. House v. Beatty, 7 Ohio, 2 pt. 84-90; Kelley v. Stanbery, 13 Ohio, 408; Harvey v. Jones, 1 Dis. 65-69; McKinzie v. Perrill, 15 Ohio St. 162.
    But it is claimed that this principle has no application in this case, because Joseph Wallace, the husband of defendant, was also in possession of the premises.
    There is- nothing in the records to show that the possession of Joseph Wallace was adverse to his wife; but, on the other hand, it was consistent with the claim and title of his wife; and, in the absence of fraud on her part, was referable to his marital rights in the property. No one will claim that she was guilty of any fraud. In support -of this proposition, see 
      Shorten v. Drake, 38 Ohio St. 76; Fassett v. Smith, 23 N. Y. 252.
    2. The legal title to the lands descended to Nancy Wallace from her father, and the deeds were executed to partition the premises, and not for any new consideration, or for the purpose of creating any new title.
    The tenants in common liad the right of partition of the premises between them, 01” the same thing might be elfected by mutual releases. No new title would be acquired in either case, and the estate of each in the land would remain the same as before. The tenancy in common only would be dissolved, and the estate of each thereby become separate. Freeman v. Allen, 17 Ohio St. 530; Dawson v. Lawrence, 13 Ohio, 543; White v. Brocaw, 14 Ohio St. 339; Tabler v. Wiseman, 2 Ohio St. 207; McBain v. McBain, 15 Ohio St. 337; Youngs v. Heffner, 36 Ohio St. 237; Crosthwaite v. Dixon, 5 Adol. & Ellis, 834.
    In Hershizer v. Florence, 39 Ohio St. 516, there were other considerations, and it was not a simple case of partition by mutual releases.
    3. Even a parol partition of the land would, in equity, be held valid and binding, if long acquiesced in by occupation in severalty. The deeds were only intended to sever the unity of possession, and created no new title, and could create none. Mrs. Wallace already had the legal title by descent from her father; it was agreed between her and.the other heirs that she should hold these premises in severalty, as her share of her father’s real estate; she did so hold them under that arrangement for about thirtjr years, and if there had been no writing whatever, the parol partition would be good in equity. Piatt v. Hubbel, 5 Ohio, 243; Wood v. Fleet, 36 N. Y. 499; Jackson v. Harder, 4 Am. Dec. 262, and note 266.
    4. The bank cannot be held to occupy the position of a bona fide purchaser, because the deeds under which it claims are only quit-claim deeds or releases made by grantors having no title of record.
    5. Nancy Wallace already had the legal title to the land by operation of law before the execution of the quit-claim releases, and the plea of bona fide purchaser is no defense against a legal title. Larrowe v. Beam, 10 Ohio, 498; McArthur v. Phoebus, 2 Ohio, 415.
    A plea of innocent purchaser cannot protect a title originally defective against a better adverse title. McArthur v. Phoebus, supra.
    
    Joseph Wallace had no real title to the land, although his name was mentioned in some of the partition deeds, as one of the grantees. Nancy Wallace had already the legal title, a,nd had performed, no act on her part to convey it, or any part thereof, to Joseph; her partition deed to the other heirs conveyed no title, nor was it intended to convey title; she alienated no part of this tract, by any act of hers; she acquired the legal title by descent, and has never in any way or manner alienated or conveyed the same to any person. This bank is therefore attempting to make the plea of bona fide purchaser against a valid outstanding legal title. Under the above authorities, such plea is certainly not good.
    6. But it is claimed by counsel for plaintiff, that Mrs. Wallace is estopped from claiming any interest in thirteen-forty-second parts of the land.
    A married woman cannot be estopped, except by her active fraud. Todd v. P. Ft. W. & C. Ry. Co., 19 Ohio St. 514; Jackson v. Cary, 16 John. 302; Kelly Married Women, 122-123.
    Merc delay in attacking the deed is not material, and does not estop. Meley v. Collins, 41 Cal. 663; s. c. 10 Am. Rep. 279; Todd v. The Railway, 19 Ohio St. 514.
    7. The doctrine of bona fide purchaser applies only to conveyances from fraudulent and voluntary grantors, and not to such a case as this. 4 Kent, 560.
    It requires some affirmative act of the owner to divest him of property, either real or personal, in favor of an innocent, purchaser. Nancy Wallace must have done some act by which she intended to, or did, convey the title to her busband.
    If Joseph Wallace did not receive his apparent title to a portion of these premises from Nancy, then she is not estopped front demanding all Iter rights and equities in the premises against ihc world, although another party, be he equally innocent, may have to suffer Dean v. Yates, 22 Ohio St. 388-396; Bernard v. Campbell, 58 N. Y. 73-76; Williams v. Merle, 25 Am. Dec. 611-612-613; Williamson v. Williamson, 41 Am. Dec. 636; Barnes v. Meeds, 49 Am. Dec. 390; Ogden v. Ogden, 4 Ohio St. 182,
    8. The National bank has no power to take a mortgage on real estate except to secure a pre-existing debt. U. S. Statutes, sec. 5137.
    Its money must be loaned and secured by personal security only. U. S. Statutes, sec. 5136, subdivision 7.
    A right, or lien, obtained merely in security of a pre-existing debt, without any other consideration, does not draw to it the equitable protection afforded to bona fide purchasers. Copeband v. Manton, 22 Ohio St. 398-402; Roxborough v. Messick, 6 Ohio St. 448; Lewis v. Anderson, 20 Ohio St. 281.
    9. There can be no trust in such a- case as this. Nancy Wallace had the legal title to the land. No trust of any kind cóuld be created except she, by her own act, created such trust. Her brothers could not create a trust for her property.
   Dickman, J.

The controlling questions to be determined in the case under- consideration are, whether Joseph Wallace acquired any estate or interest in the lands described in the original petition, by the deeds to himself and his wife Nancy Wallace,, from Renjamin, Jacob and Joseph Uhrich, and Benjamin and Adam Ross; and whether the Farmers’ and Merchants’ National Bank, by virtue of the mortgage executed to it by Joseph Wallace, acquired a lien upon or interest in any portion of such lands. Nancy Wallace, defendant in error, at the death of her father Jacob Uhrich, sr. intestate, became entitled as one of his heirs at law, to an undivided seventh part in fee of all the lands of which he died seized, and of which the lands described in the petition constituted a part. As tenant in common, clothed with full power of alienation, she was competent to vest by deed in the other heirs, or in strangers, an absolute title to all her undivided interest in the lands of the intestate. And the same power of alienation which she possessed, was vested in those heirs who had by quit-claim deeds conveyed to her and Joseph Wallace all their interest in the lands described in the original petition. White v. Sayre, 2 Ohio, 110; Treon v. Emerick, 6 Ohio, 391; Prentiss’ case, 7 Ohio, 2 pt. 129; Dennison v. Foster, 9 Ohio 126.

There was an agreement that the heirs at law of the intestate should make an amicable partition among themselves, of all the lands of which he died seized. The quit-claim deeds by the defendant in error to her brothers and other heirs at law, doubtless, were designed as the consideration for the deeds from them to herself and husband jointly. As between him and herself, apart from any rights inuring to him jure uxoris, he would hold in trust for her the legal title to an undivided moiety of the interest conveyed to them jointly, equivalent to thirteen forty-second parts of the land in the original petition described. As between himself, however, and a bona fide purchaser for a valuable consideration, without notice, the record of the deeds would show him the unqualified owner of a* legal estate in an undivided moiety, with all the rights incident to such ownership. But the record would not-bring home to .any one, notice of any latent equity of the wife independent of her rights as a joint grantee with her husband in the deeds executed to them.

The bank, at no time prior to the commencement of the original action, had any knowledge or notice of any claim or interest of Nancy Wallace in the lands in controversy, adverse to the title of Joseph Wallace as shown by the deeds to him and his wife; nor had the bank at that time, any notice or knowledge whatever, of any fraud or mistake in the insertion of the name of Joseph Wallace in the déeds or either of them; and had no knowledge whatever, of the manner of the acquisition of such lands by Nancy and Joseph Wallace, other than what was shown by the records of those deeds. Under such circumstances, the bank in dealing with Joseph Wallace and taking from him the mortgage, was justified in relying upon the evidence furnished by the records. The object of the registry acts, as observed by a leading text writer, is to furnish the best and most easily accessible evidence of the titles to real estate, so that purchasers may be informed of prior deeds and incumbrances; and having availed themselves of this source of information, may purchase in safety, provided they do so without knowledge, information or suggestions from other facts, of some antecedent conveyance or equitable claim.

It is contended that the defendant in error was in'possession of the land with her husband before and at the time of executing the mortgage to the bank, and that such possession was notice to the mortgagee of her actual rights and interests. But her possession under the quit-claim deeds to herself and husband was not exclusive, or of a character to give information that she was an occupant asserting dominion over the property under claim of right or authority exclusive of property-rights in her husband, and therefore did not operate as notice to the mortgagee. Ranney v. Hardy, 43 Ohio St. 157. An essential feature of the possession which is set up as notice to a subsequent purchaser is, that it must be exclusive, at least so far as such subsequent purchaser’s grantor is concerned. This principle is illustrated in Buckmaster v. Needham, 22 Vt. 617. In that case, a father conveyed to his son, upon certain conditions, an undivided one-third of a farm, which was at the time occupied by them as tenants in common. .The grantee, after residing upon the farm with the grantor for several years, removed and left the grantor in possession of the whole farm, and afterward, and while the grantor Avas thus in possession, executed a mortgage deed of one-third of the farm, and the reason and purpose of the removal did not appear. It Avas held, that the court Avould not presume that the grantor was so in possession claiming title to the Avhole farm adversely to the grantee, as to avoid the mortgage thus executed; and that, although the possession may have been intended to be adverse to the grantee, yet, that this Avould not affect the validity of the mortgage, unless the mortgagees, at the time of the conveyance to them, had notice of such adverse possession. The decision rests upon the familiar principle that even a sole possession by one tenant in common, is not presumed to be adverse to the co-tenant; and that the ordinary presumption is that such a possession is held in right of both tenants. To render the occupancy of the tenant in common adverse to those who have an undivided interest in the premises, there must be positive and overt acts connected with his exercise of ownership, such as will manifest an unmistakable intention on his part to exclude his co-tenants from the enjoyment of the property; otherwise his possession will be regarded not only as a declaration of his own proprietary rights, but those of his co-tenants as well.” Wade on Nonce, § 290, and cases cited.

Jnder the laws of Ohio, estates in joint tenancy do not exist, and the decisions have always been averse to estates by entireties. When land, therefore, is granted to husband and wife, they take by moities as tenants in common. The jus aaaresaendi,” say the court in Sergeant v. Steinberger, 2 Ohio, 305, is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions. But, on the contrary, it is adverse to the understandings, habits, and feelings of the people.” See also Wilson v. Fleming, 13 Ohio, 68. By the deeds, therefore, to Nancy and Joseph Wallace, she took as tenant in common with her husband, the legal title to one undivided moiety of the land or interest in land thereby conveyed. And as against the bank, whose only knowdedge of her right of possession was derived from the records, her possession of the granted premises, instead of being adverse to her husband, might be consistently referred to her possessory title of record acquired under the quit-claim deeds executed to her and her husband jointly.

Joseph Wallace, before and at the time of executing the mortgage, was in the actual possession of the premises therein described.. But it is claimed in behalf of Nancy Wallace, that the lands upon which she and 'her husband had resided continuously for several years at the time of the partition in 1854, came to her by title of descent from her father, and that therefore the possession of her husband should be referred to his marital rights, and not to the legal title acquired by him through the deeds to himself and wife. Granting that his marital rights had not been abridged by statute, and that he was in full possession and in the enjoyment of the rents and profits by virtue of those rights, the bank could not then have been chargeable with notice by reason of possession by the wife. The rule, however, seems to be settled, that when a proprietor occupies premises under a title which rests in parol or is unrecorded, and the record shows a title under which he would be entitled to possession, his possession will be referred to his record title in preference to any other. The possession of land is notice of the' possessor’s title; but the registry by him of a particular title would restrict the generality of notice from possession. Woods v. Farmere, 7 Watts, 382. If the occupant relies on title by possession alone, it is open to a j)articular examination of the foundation of it. But when he makes the register the evidence of his title, and directs the attention of the public to a particular conveyance on record, he is presumed to have preferred the register as the best index of his title. In Plumer v. Robertson, 6 Serg. & Rawle, 179, the registered title was a mortgage, the other a covenant for a purchase which was susceptible of registration; it wras held, in accordance with the principle indicated, that as the possession was consistent with the registry, the subsequent purchaser was not bound to inquire further.

But although the bank may have received the mortgage from Joseph Wallace without notice or knowledge of any equities of his wife, the question arises, whether the bank is to be treated as a bona fide purchaser for a valuable consideration. It appears from the findings of fact, that on the 22nd of March, 1883, Joseph Wallace was indebted to the bank upon certain promissory notes then past due, and in consideration of an extension of time for the payment of his indebtedness and of a reduction of the rate of interest thereon from eight per cent, to six per cent., he made and delivered to the bank his new notes — the old notes having been delivered up and can-celled — and executed a mortgage on the premises conveyed to himself and wife jointly. We are of the opinion that the surrender and cancellation of the old notes, the extension of the time of payment of the debt, and the reduction of the rate of interest, were a sufficient consideration for the new notes, to secure which the mortgage was given, to entitle the bank to protection as a purchaser for value. After the stipulation for further time of payment, and the reduction of the rate of interest, the mortgagee did not remain in the same situation as before, in respect to the pre-existing debt. In Lewis v. Anderson, 20 Ohio St. 281, the question how far a mortgagee, when the only consideration of the mortgage is a pre-existing debt of the mortgagor, must be regarded as a purchaser for value and entitled to the protection against prior liens afforded in equity to bona fide purchasers, was made to depend on whether the mortgagee was induced by virtue of the mortgage to change his condition in any manner. Day, J., says: “There was no consideration for the mortgage other than the pre-existing debt of the mortgagor; nor was the mortgagee induced thereby to change her condition in any manner.” In the well known case of Roxborough v. Messick, 6 Ohio St. 448, it was held that when the note of a third person is transferred, bona fide, before due, as collateral security, and for value, such as in consideration of a loan, or advancement, or a stipulation, express or implied, of further time to pay a preexisting debt, or the like, the holder of such collateral will be protected from infirmities affecting the instrument before it was thus transferred. In Gilchrist v. Gough, 63 Ind. 576, there was a question of priority of mortgages as between Gough and Hoffman. Howk, C. J., in delivering the opinion of the court observed: “ The appellee, Hoffman, must be regarded as a purchaser or mortgagee, for a valuable consideration, as to each' of his mortgages. For it appeared that, in each of the mortgages, the time of payment of the pre-existing indebtedness, to secure which the mortgage was given, had been extended for the term of one year, and this extension of time was sufficient to make him a purchaser or mortagee for a valuable consideration, as to each of the mortgages.”

The point is made that the object of the several quit-claim deeds executed interchangeably by the heirs at law to each other, being for the purpose of partition of the lands among themselves, no new title was created, and hence the deeds from the Uhrich brothers and the Ross brothers, while they vested an estate or interest in Nancy ’Wallace, conveyed none to Joseph Wallace. It is true, as declared in Tabler v. Wiseman, 2 Ohio St. 207, that a proceeding in partition does not decide title or create any new title, and that it merely dissolves the tenancy in common, and leaves the title as it was, except to locate such rights as the parties may have in distinct portions of the premises, and to extinguish it in others. But it is only necessary to say, that while the heirs at law took by descent from Jacob Uhrich sr. the lands which they partitioned among themselves as tenants in common, Joseph Wallace took by purchase from Benjamin, Jacob and Joseph Uhrich, and Benjamin and Adam Ross.

Nancy Wallace acquired no title, independent of the quitclaim deeds of the heirs to each other, by virtue of any parol agreement to partition. She and her husband were first placed in possession' of the land described in the original petition by her father, and in 1854 the heirs at law agreed to divide the lands of their inheritance, and that agreement was followed at once by partition deeds. There was no parol partition, consummated by possession taken and held in accordance therewith and so long acquiesced in, as to call for the protection of a court of equity. And such possession as might be referable to the deeds of partition in which Joseph Wallace was made a grantee, could not take away the rights of the bank as a bona fide purchaser, for a valuable consideration, and without notice.

The mortgage was given to the bank by way of security for an indebtedness previously contracted and evidenced by now notes of the mortgagor. In taking such security, the bank did not violate the provisions of the national banking law in reference to holding real estate. Revised Statutes of the United States, section 5137; Shinkle v. First National Bank of Ripley, 22 Ohio St. 516; Allen v. First National Bank of Xenia, 23 Ohio St. 97; Upton v. National Bank of South Reading, 120 Mass. 153; Ornn v. Merchants’ National Bank, 16 Kan. 341; Morse on Banking, 2 Ed. 566.

Entertaining these views, the judgment of the district court, we think, •should be reversed.

Judgment reversed.  