Brown v. National Bank.

clause conveys but a life estate, and that the estate is not enlarged by a power of sale and conveyance in fee-simple.

It may be conceded that, as a general rule, the use of the word "heirs" is essential to the conveyance of a fee-simple estate in lands. This, however, is not to be accepted as an iron rule, admitting of no exceptions or qualification. Gould v. Lamb, 11 Met. 86.

Every deed is to be so construed as, if possible, to give effect to the intention of the parties. It is to be construed most strongly against the grantor. If the intention of the parties, apparent upon the face of the instrument, can not be carried into effect, this object should be attained as far as is possible." White v. Sayre, 2 Ohio, 113.

In Bobo v. Wolf, 18 Ohio St. 465, Day, C. J., said that, in determining the true construction of a deed, "we must seek for the real meaning intended to be expressed by the language used in the deed. For this purpose we may read it in the light of the circumstances that surrounded the parties at the time it was executed."

Looking to the circumstances of the parties at the time of the execution of this mortgage we find them attempting to provide a security for the payment of several thousand dollars, evidenced by negotiable promissory notes.

This is sought to be done by pledging certain real estate by the use of a mortgage deed. We find the mortgagors

in the state of Indiana. The form of the instrument used to express their intention is such as the law of that state expressly authorized and prescribed for the conveyance of lands in fee-simple as mortgage security for a debt. We are not unmindful of the principle that deeds intended to convey or incumber an interest in lands situated in one state, executed in another, must derive their vitality from the laws of the former.

It was to give effect to such instruments that it has long been provided in Ohie that: "All deeds, mortgages,

situate

for the conveyance or incumbrance of lands within this state, executed and acknowledged, or proved in any other state, in conformity with the laws of

VOL. 44-18

Brown v. National Bank.

this state,
this state." (Sec. 4111, Revised Statutes.)

shall be as valid as if executed within

It is not our present purpose to construe this provision, or to say that it gives to the instrument before us the same. effect it would have had as a mortgage of Indiana lands. We leave that question unconsidered. We are dealing with this feature of the case as one of the circumstances in the light of which the parties were dealing at the time of the execution of this instrument. By its terms the mortgagors declared that they "mortgage and warrant" the lands described, "to secure the payment, when they become due, of eleven promissory notes," etc.

This word "mortgage" is one of potent significance. When used as a verb (as it is in the instrument before us), Webster defines it: "1. (Law.) To grant or convey, as property, for the security of a debt, or other engagement, upon a condition that if the debt or engagement shall be disdischarged according to the contract, the conveyance shall be void, otherwise to become absolute, subject, however, to the right of redemption."

It was unmistakably the intention of the parties to this deed that the lands described were to be pledged as a security for the debt. That such security should abide until the debt was paid. It would do violence to the language used to suppose that the parties contemplated that only a life estate was being pledged for that purpose-that the security was destined to die with the mortgagee. It is a familiar principle that whatever changes the evidence of a mortgage debt may undergo, or into whosesoever hands it may pass, the mortgage security still attaches to it and remains an incident of it until it is discharged. Patterson v. Johnston, 7 Ohio (part 1), 227; Choteau v. Thompson, 3 Ohio St. 428; Brinckerhoff v. Lansing, 4 Johns. Ch. 65.

These notes were, by their terms, negotiable. This mortgage was plainly intended to devote the lands described in it to the purpose of securing the payment of these notes, into whosesoever hands they should pass. Whatever estate was necessary to secure the payment of

Brown v. National Bank.

these notes must have been intended to pass by this mortgage. This mortgage further provides that if default be made in the payment of any of these notes they are "to be collected by foreclosure of this mortgage or otherwise." If the recitals of this mortgage to which we have already called attention leave any doubt as to its real purpose, it is solved by the provision last cited. If the term "foreclosure" was employed in its general legal sense, we see (Bouvier's Law Dic.), that the parties contemplated: "1. A proceeding in chancery by which the mortgagor's right of redemption of the mortgaged premises is barred or closed forever. 2. This takes place when the mortgagor has forfeited his estate by non-payment of the money due on the mortgage at the time appointed, but still retains the equity of redemption; in such case, the mortgagee may file a bill calling on the mortgagor, in a court of equity, to redeem his estate presently, or, in default thereof, to be forever closed or barred from any right of redemption."

It is more reasonable to suppose, however, that it was contemplated by the parties that the foreclosure proceedings provided for by the mortgage must be instituted in the state and county where the lands were situated. This necessarily involved the sale of the mortgaged premises. (Section 5316, Revised Statutes.) The purchaser under such a proceeding takes the complete title of both mortgagor and mortgagee. Carter v. Walker, 2 Ohio St. 339; Parmenter v. Binkley, 28 Ohio St. 36.

By no other method known to our law can the mortgagor's equity of redemption be barred and foreclosed. Thus we see that by the express provisions of this mortgage a purchaser may become invested with a fee-simple estate in the lands "mortgaged" to secure the note which passed into the hands of the plaintiffs in error.

In the case of Sedgwick v. Laflin, supra, it is practically conceded that if the power of sale which the mortgage contained had been executed, it would have passed an estate in fee in the mortgaged premises. In the case at bar the parties for whose benefit the mortgage was made-the

Brown v. National Bank.

holders of the mortgage debt-are proceeding to execute the express provisions of the mortgage by foreclosing the equity of redemption through a sale of the lands. Instead of an authority against the claim of the plaintiffs in error, the case last cited is in reality one of its strongest supports. Instead of this mortgage being one wherein (in the words of the opinion in the case of Clearwater v. Rose, supra) there is "nothing which shows that the grantor intended such a perpetuity of interest as is essential to an estate in fee," the conclusion is irresistible that such a perpetuity of interest was not only intended to pass, but it is expressly provided for. This case, therefore, is not found to stand in the way of the construction contended for by the plaintiffs in error.

From the construction of this mortgage which prevailed in the court below, the strange result must follow that the enforcement of the express stipulations of the parties according to their plain and manifest intention is impossible. If but a life estate passed to the mortgagee, and the security was buried with him, one of the vital and important provisions of the instrument-that which provides for the collection of the note upon default of payment-must perish. A proposition so at war with the familiar rule which requires us to construe every deed most strongly against the grantor can not prevail.

We are here to enforce, not to defeat, the deliberate agreements of parties.

It is not necessary to assume that the subsequent incumbrancers are charged with notice of the statute of Indiana, prescribing a form of conveyanee necessary to constitute a mortgage in fee of lands. There are sufficient recitals in this mortgage to evidence the intention of the parties to it, and the record of it sufficiently charged all persons dealing with the lands with notice of what that intention was.

While we may not be able to harmonize all the adjudications upon this question, the better doctrine seems to be that where the language employed in, and the recitals and conditions of, a mortgage plainly evidence an intention to pass the entire estate of the mortgagor as security for the

Forsythe v. Winans, City Solicitor.

mortgage debt, and the express provisions of the instrument can not otherwise be carried into effect, it will be construed to pass such estate, although the word "heirs' or other formal word of perpetuity is not employed.

The conditions of this mortgage, construed together, plainly bring it within the .exceptions to the general rule that the use of the word "heirs" is essential to the conveyance of an estate in fee-simple, or other interest greater than a life estate.

The district court erred in holding that but a life estate was conveyed by the mortgage in question.

This conclusion removes the necessity of considering other assignments of error. The judgment of the district. court is reversed, and the cause remanded to the circuit court for further proceedings, in accordance with the above holding.

FORSYTHE U. WINANS, CITY SOLICITOR.

Section 1777, Revised Statutes-Bond for injunction-Contempt of court.
Error to the District Court of Greene county.

Charles Durlington, for plaintiff in error.
James Winans, for defendant in error.

BY THE COURT. Where, under the provisions of section 1777 of the Revised Statutes, a solicitor of a municipal corporation brings suit to enjoin the misappropriation of money by the council, he is not required to give an undertaking, and an injunction so allowed by a court of competent jurisdiction, or a judge thereof, operates without such undertaking being given; and the members of council, or any of them, violating the injunction after notice thereof has been served upon them, are liable to be punished for the same as for a contempt of the authority of the Judgment affirmed.

court.