representatives or attorneys, consenting to the restoration of said record, proceeding, document, or docket and journal entries, no notice shall be required. V. The parties interested in said record, proceeding, docket or journal entries may at or before the time fixed for said hearing file exceptions to the restoration of the same, specifying therein each item or part thereof objected to. VI. On the day mentioned in said notice or summons, the application, and where exceptions have been filed, the application together with the exceptions, shall be referred to the Commissioner of the Probate Court (or to such other Commissioner as the parties may agree upon, as provided by statute), to examine the same and hear the testimony offered, and make his findings and report the same, together with the testimony, to the Probate Court, as provided by law. All testimony must be reduced to writing and signed by the witnesses. HERMAN P. GOEBEL, Probate Judge. REPORTS OF SELECT CASES ARGUED AND DETERMINED IN THE PROBATE COURT OF HAMILTON COUNTY, OHIO. RACHEL MARTIN, ADMINISTRATRIX OF The Estate OF GANO MARtin, Deceased, vs. JOHN MARTIN, ET. AL. Priority of liens between holders of notes secured by mortgage. A mortgage was executed to A and others to secure the payment of several notes, one of which was payable to A; A assigned the mortgage to B by the following endorsement: "For value received, I hereby assign and transfer to B, his representatives and assigns, the within mortgage and notes. thereby secured, etc.," and pretended to transfer all the notes. described in the mortgage by forging the names of the owners thereof. B took the notes without knowledge of the fraud. Subsequently A, being indebted to C, transferred and assigned by indorsement, the genuine note payable to himself, to C. who took it before due and without knowledge of the fraud perpetrated upon B. Held, that as between B and C the latter was entitled to the payment of the note, and that the benefit of the mortgage passed with the transfer of the note. Decided March 3, 1885. Martin, Administratrix v. Martin. On the first day of January, 1879, Gano Martin, now deceased, executed and delivered to W. R. McGill and others, his mortgage deed for the property now ordered to be sold to secure the payment of eight notes, amounting in the aggregate to $16,113.69. Among the notes so executed and delivered, was a note payable to the order of W. R. McGill, for $7,602.72. On the 8th day of February, 1879, McGill, being indebted to Robert Kernahan in a large amount, transferred and assigned the mortgage so made by Martin, to Kernahan by the following assignment endorsed on the mortgage: "For value received, I hereby assign and transfer to Robert Kernahan, his representatives and assigns, the within mortgage and notes thereby secured. February 8, 1879. William R. McGill." And pretended to transfer all of the notes described in the mortgage by forging the names of Gano Martin and the owners thereof, representing to Kernahan, that these notes were the notes secured by the mortgage. Kernahan took the notes without knowledge of the fraud. On the 9th day of May, 1879, McGill being indebted to Manss Bros. & Co., transferred and assigned by endorsement thereon, the genuine note of $7,602.72 made by Martin to McGill, to them, before due and without notice or knowledge of the fraud perpetrated by McGill on Kernahan. Martin, Administratrix . Martin. John Johnston for Kernahan. GOEBEL, J. It being now conceded by Kernahan that he has no claim against the mortgagees other than Manss Bros. & Co., the question to be determined is as between them, who has the better right to the lien of McGill in the proceeds of sale. It is claimed on behalf of Kernahan that the assignment of the mortgage to Kernahan before the transfer and endorsement of the note to Manss Bros. & Co., passed the right of possession and property in the McGill note to him. I believe the law to be well settled in Ohio that a mortgage deed of real estate is regarded in equity as a mere security for the performance of its condition of defeasance. If that condition be the payment of a debt, the security is regarded as an incident belonging to the debt, and the equitable right to the benefit of the security passes by the legal transfer of the debt. to the assignee, unless the agreement to the transfer by the parties be otherwise; and that a note payable to order or bearer, when properly endorsed, and delivered for a valuable consideration, before due, is, in the hands of a bona fide holder, free from all equities between the original parties. Do Manss Bros. & Co. come within this provision? |