Sayler. Simpson. balance remaining in the hands of the assignee subject to such distribution, until all liens and incumbrances are paid. Whether there is such balance, and what it is, must be determined by the court before declaring the dividends. In this way the assignee may proceed with safety in the administration of his trust under the orders and directions of the court having control of the whole subject. In Lindemann v. Ingham, 36 Ohio St. 1, this statute was considered at length, and with care. The questions there presented and disposed of were not essentially different from those under discussion. The property had been mortgaged before the assignment was executed. The assignee sold it, and held the fund for distribution. The mortgagee brought his action against the assignee in a court of general jurisdiction. It was held that the action could not be maintained; that the lien was transferred to the fund, and the rights of the mortgagee must be worked out through the probate court. It was not denied that, the condition of the mortgage being broken, the legal title to the property was in the mortgagee, and all that was left in the mortgagor, and therefore all that passed to his assignee, was an equity of redemption, or an equitable interest to the extent of what remained after the payment of the mortgage. The question naturally arises, how could the rights of the mortgagee be worked out through the probate court, otherwise than upon application to that court, for so much of the proceeds of the sale, as was necessary to satisfy the mortgage; the balance was the equitable interest of the assignee subject to distribution among the general creditors. Upon such application the court must determine the amount due on the mortgage, and order it paid. This necessarily involves the inquiry whether anything is due, whether the mortgage is a lien, and to what extent it is such. To work out his rights through the probate court, these questions must be determined by that court, and substantially the same questions are involved in the case now under consideration. It might have been said in that case with as much propriety and force as in this, that no pleadings and process Sayler v. Simpson. are provided for in the probate court, and no jurisdiction. is conferred on that court to determine the amount or extent of the equitable interest remaining in the assignee, for that involves the validity of the mortgage, and the amount due on it, which can only be determined by a court of general jurisdiction. If the position taken by the plaintiff in error here be the true one, it was the duty of the court in that case to have sustained the plaintiff's action, but limited his recovery to the amount due on the mortgage, thus leaving the assignee in possession of the surplus. The conclusion of the court, announced by the learned judge in Lindemann v. Ingham, supra, that the provisions of the statute, "show very clearly that the legislature intended to vest in the probate court full and complete jurisdiction over the whole subject of assignments of this character," was not hastily reached, or incautiously stated; but was the result of careful consideration and deliberate judgment. It has been accepted and followed in practice since. Blandy v. Benedict, 42 Ohio St. 295; Kemper v. Campbell, 44 Ohio St. 210. Gilliland v. Sellers, 2 Ohio St. 223, is cited by counsel, as establishing, by analogy, the absence of such jurisdiction. That was a proceeding by an administrator, to sell lands incumbered by mortgage, for the payment of debts, to which the mortgagee was a party. The court of common pleas (then a court of probate) assigned dower to the widow, found the amount due on the mortgage, and ordered it paid out of the proceeds of the sale; and further decreed that the mortgage be cancelled. The decree of cancellation was held to be without authority and void. We do not question the correctness of that holding, or perceive wherein it is in conflict with Lindemann v. Ingham, supra. It was, when the court went beyond the distribution of the fund under its control, and adjudicated upon rights not involved in, or necessary to such distribution, that it exceeded the measure of its jurisdiction. Judgment affirmed. Farmers' and Merchants' National Bank v. Wallace. FARMERS' AND MERCHANTS' NATIONAL BANK . 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 knowl-, edge 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 1863, 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 wife 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 wife; 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 was 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 wife jointly, they take by moieties as tenants in common. 3. A mortgage of real estate executed to a national bank, to secure an indebtedness 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 the District Court of Tuscarawas County. Nancy Wallace, defendant in error, filed her petition in the court of common pleas of Tuscarawas county, against Joseph Wallace and The Farmers' and Merchants' National Bank of Uhrichsville, O., setting forth among other things, that she Farmers' and Merchants' National Bank v. Wallace. 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 an amicable 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 Farmers' and Merchants' National Bank of Uhrichsville, a mortgage of the real estate of which he had thus become seized, to secure his indebtedness to the bank. The plaintiff in her petition, asked that the mortgage be held void as to the lands described in the petition, and that 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 Farmers' and Merchants' National Bank v. Wallace. 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, and a few days after said agreement was made, conveyed by quit-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 |