Farmers' and Merchants' National Bank v. Wallace. 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 Notice, § 290, and cases cited. 66 Under 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 accrescendi," 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 knowledge 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 Farmers' and Merchants' National Bank . Wallace. 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 particular 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 was 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 cancelled-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 says: Farmers' and Merchants' National Bank v. Wallace. 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., "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 Farmers' and Merchants' National Bank v. Wallace. 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 new 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, seetion 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. Becker v. Walworth. BECKER v. WALWORTH. Executors and administrators-Personal liability for rent of leasehold-Election of remedy. 1. A lease for years, being a chattel interest, passes, at the death of the lessee, to the personal representative, who becomes, by virtue of his office, assignee of the term; and the law specifically appropriates the profits of such leased premises, to an amount equal to the rents reserved in the lease, to the benefit of the lessor. Hence, if such representative enters into possession of the leased premises and receives such profits, he becomes personally liable to the lessor for accruing rents to the extent of the profits of the premises during such occupancy. 2. In such case the lessor has an election either to look to the estate of the deceased alone for such rents, or to hold the representative personally liable therefor. 3. The giving by the lessor of receipts for a portion of the rents accruing during such occupancy to the representative as such, and the commencement by the lessor of a suit against him in his representative capacity to recover a balance due, which is discontinued, do not constitute such an election as will bar the prosecution of a claim by the lessor to recover such balance of the representative in his individual capacity. (Decided May 10, 1887.) ERROR to the District Court of Cuyahoga County. One Adam Rafenstein was the lessee of Annie Walworth, defendant in error. He died during the term, leaving a will by which the plaintiff in error was appointed executor. He entered into possession of the premises, collected rents from sub-lessees, and paid from that source some of the debts of the estate, and to the lessor a part of the rent accruing while so in possession, but did not pay the same in full. The estate proved to be insolvent. After the possession terminated, an action was commenced in the court of common pleas by the lessor to recover of the executor personally. The defense sought to be made by pleading and proof was that the defendant took possession for the benefit of the estate and in his capacity as executor, and that plaintiff had elected to hold defendant liable for rent in his capacity as executor only, and not in his personal capacity. It was admitted that the rents re |