The daily press. (Cincinnati [Ohio) 1859-1859, 1859-03-19
LAW REPORT.
SUPERIOR COURT.

INTERESTING TO MORTGAGES. Es.--Abraham o..
Brannin, assignee of A. O.. Smith, rs. Chas. J..
Smith, N. D. Smith and others. Judge Spon-
Ger delivered the opinion in this case. .l.II
The plaintiff fled his petition to establish
his title under deed OF assignment, for the
benefit of creditors, rs against mortgages
claiming title under mortgage alleged to have
been improperly executed; or, If il should be
found to have been properly executed, then to
enforce the mortgage for the benefit of all the
creditors, as an assignment in trust, mnde by
debtor in contemplation of insolvency to pre-
fer creditors. ,'.I .eH - f ..
The mortgage was executed ON the 9th day
Of January, 1885, the decd of assignments to
the plaintiff was executed 18th January, 1858.
Both were executed in Louisville, KY, where
tho parties all resided at the timo, and en-
braced the same real estate, situate in the city
of Cincinnati. sr Ift fY-...f ...
The mortgage was not scaled by the grantor,
nor was it acknowledged by him according to
the laws of Ohio. Nor was it proved before
any officer, authorized by the laws of Ken
lucky, to take such proof. 1t was proved by
subscribing witnesses appearing before Com
missioner of Deeds, &c., appointed under the
laws of Ohio. The plaintiff was himself a
subscribing witness to the mortgage, and had
actual notice of its contents before receiving
the assignment to himself.
By the terms of the mortgage, the premises
therein described were conveyed to N. j. Smith,
N. D. Smith, Jacob Smith and c. o. Smith,
"to them and each of them" "to secure said
persons iHdividuoHy and as firms, in their
liabilities" for A. o. Smith. The liabilities
referred to were Endorsements made by the de-
PENDANTS, upon which some one Of the parties
alone or some two or three of the parties jointly,
were liable, but upon none of which were all
liable, either jointly or severally.
II W. Al. 4. 1 4
in severalty as to the debts for which they were
severally bound, and jointly for the debts for
which part of them were jointly bound, and to
| the extentonly for which they were so severally
and jointly bound; but each had an interest in
the property until the liabilities of all were
paid-and all had an interest until the liabili-
ties of each were paid. They were, therefore,
trustees INTERCHANGEABLE for each other; and
the instrument falls within the provisions of
| the statute of 1888, as q conveyance in trust,
| by an insolventin contemplation Of insolvency,
with design to prefer portion of his credit
ors to the exclusion of the rest; and even if it
were well executed, il would be held to operate
| for the benefit of all alike.
2. BY the law Of Ohio a mortgage takes eff
feet only from the time it is delivered from rec
| ord; whether as against subsequent mortgage,
judgment, mechanics loan or voluntary con-
veyance in trust for creditors, and without any
regard to the question of notice on the part Of
such subsequent inoumbrancer.
| 3. To entitle such instrument to be received,
under the fifth section of the act for the proof
of deeds, it must be wholly executed and ao-
knowledged, or proved, either in conformity with
the law of this State, or the laws of the State
where executed. 1t is not sufficient that it be
executed only in accordance with the laws of
the one State, and acknowledged or proven ac-
cording to the laws Of the other.
A. By the statute of Ohio authorizing the
appointment of Commissioners to take the ac-
knowledgment and proof of deeds, &C., to be
used or recorded in this State, it is requisite
that such Commissioners should act wholly in
accordance with the laws Of Ohio, in the taking
Of such acknowledgment or proof 1t is not
I sufficient for him to act in conformity with the
laws of the State or county to which no is COM
missioned.
5. The mortgage under consideration L0t
being executed in conformity to the laws Of
Ohio, nor proven according to the laws of Ken
lucky, was improperly admitted to record in
Ohio, and is not operative as against the plain
tiff. The plaintiff ia therefore entitled to thu
relief prayed for in his petition.
S. J. THOMPSON, for Plaintiff.
RUFUS KING, for Defendant.