
    William Resor v. The Ohio and Mississippi Railroad Company et al.
    Where a vendor puts Ms vendee into possession, and executed and placed in his hands a deed of conveyance for the land sold, with an understanding between them that the deed should not be considered as delivered, or become effectual, until the purchase money should be paid; and the vendee subsequently put the deed upon record, and, without paying the purchase money, mortgaged the land to bona fide mortgagees for value, and without notice: Held, that such vendor is estopped, as between Mm and the mortgagees, from denying the delivery of the deed, or asserting any claim to the land.
    ^Appeal. Reserved in the district court of Hamilton county.
    On the 12th of May, 1853, the plaintiff, William Resor, contracted with the defendant, the Ohio and Mississippi Railroad Company, to-sell and convey to that company a perpetual leasehold interest in a tract of land, for the consideration of $8,000 of their capital stock.
    At this date the plaintiff had title only to an undivided moiety of the estate.
    Immediately after the execution of this contract, the railroad company, with the plaintiff’s consent, entered into possession of the land, and proceeded to erect upon it a turn-table and other improvements necessary for the operation of the road, and, from the same date, paid the ground-rents and taxes.
    On April 16, 1855, the plaintiff, erroneously supposing that, by virtue of proceedings in partition, he had acquired title to the estate in severalty, executed a deed in due form to the railroad company, handed it to the president of the company and asked for the issue to him of certificates of the stock. The president took the deed and sent it to the solicitor of the company, for an examination of the form of conveyance, and of the plaintiff’s title.
    The deed was pronounced satisfactory. But irregularities were discovered in the proceedings for partition, and a few weeks elapsed before these irregularities were corrected.
    When the title had been made good, the plaintiff was 'informed that it was satisfactory to the company, and he then called for his certificates of stock, and received a promise that they should be issued.
    On August 29,1855, having repeatedly asked for the issue of these certificates, and having been always met with the promise that they should be issued, but the neglect to do so having continued, the plaintiff formally notified the railroad company that he declined to receive the stock.
    On the 23d of January, 1856, the deed executed by the plaintiff, and which had from the day of its date remained in *the possession of the railroad company, was by its president placed on record.
    On the 1st of March, 1856, and again on the 1st of May, 1856, the railroad company executed mortgages, in the usual form of railroad mortgages, upon all its property, to secure large issues of bonds, which are still unpaid — the mortgagees and bondholders being ignorant, at the time they became such, of any claim set up by the plaintiff to the premises in controversy.
    On the 14th of June, 1858, plaintiff commenced the present action in the common pleas against the railroad company and said mortgagees, asking to have his deed delivered up and canceled, and said contract between him and the railroad company rescinded, and praying for a release of all interest and claim of the mortgagees.
    The plaintiff afterward filed an amended petition, in which he claims a judgment against the railroad company for the value of the stock at the time it was first demanded, being 28 per cent, of its nominal value, and an order to sell the premises on default of payment.
    
      V. Worthington and J. Burnet, for plaintiff,
    argued (among other points not decided) that, as the mortgages do not describe specifically the plaintiff’s land, but cover over, in general terms, the property owned by the company, they were not in any degree or in any sense received on the faith of the company’s pretended title to the plaintiff’s land; and cited Ogden v. Ogden, 4 Ohio St. 182.
    
      Thos. G-. Mitchell, for defendants,
    argued that where one of two innocent parties must suffer, he who, by any carelessness, undue confidence, or neglect, has been.the means of enabling the other to be deceived, must bear the loss; that this is a much safer rule than that of prior in tempore potior in jure; and that Ogden v. Ogden, 4 Ohio St. 182, is against the plaintiff, as to the rights of the bondholders in the present case, who purchased the bonds on the faith of a mortgage on the road and appendages of the company, of which the land purchased from the plaintiff was an important portion.
   *Welch, J.

It is unnecessary to decide the question mainly argued by counsel — whether the deed was in fact delivered —or to inquire into plaintiff’s right, as between him and the railroad company, to rescind the contract of sale or to have a lien for the value of the stock. We think the plaintiff, under the circumstances, is estopped.!, as against these mortgagees, from denying the delivery of the deed, or setting up any claim to the premises. By his own acts in putting the land and the deed of conveyance therefor into the possession of the company, he has plainly said to the world that the company was the owner of the land, and might safely be dealt with as such. To allow him now to set up claims inconsistent with these acts and to the prejudice of the mortgagees, would be, in effect, to work a fraud upon their rights.

The plaintiff’s petition will be .dismissed as to the mortgagees; and the plaintiff, if he desires it, can have judgment against the company for the value of the railroad stock — 28 per cent. — with a junior lien upon the mortgaged premises for its payment.

Decree accordingly.

Day, C. J., and White, .Bsxnkebhoee, .and . Soott, JJ., concurred.  