street car on St. Clair avenue, due to the negligence of the city. in the care of the street.

At the time, the street was undergoing the construction of a new pavement by one Burnett, under a contract which he had with the city, and the condition of the street of which she complains was due to his operations under the contract. He had failed to put up red lights, or barriers, at this place, to protect those who might use the street, as he had contracted with the city to do, and this, she claims, was the proximate cause of the accident. His contract also provided that he would protect the city as against any acts or omissions of negligence upon his part in the performance of his work.

There is a statute which imposes the duty upon the city to keep its streets open, in repair, and free from nuisance. If there was any nuisance in this case, it was created by this contractor. That, however, would not relieve the city. The duty is imposed upon the city, as I have said, to keep the streets open, in repair, and free from nuisance, and the city can not contract that duty away, and thereby absolve itself. The principle of respondeat superior applies, just the same.

But, Burnett, being the wrongdoer, the plaintiff had the right of election as between him and the city, as to which she would sue. If she sued Burnett, the result of the case would be final, as far as the city is concerned. Burnett could recover no part of any judgment from the city which she might obtain against him. But if she sued the city, and the city gave Burnett notice to come in and defend, as it has here, the city could recover from him the amount of any judgment it would be com pelled to pay on account of his negligence. The amourt of the judgment in such case, would be conclusive, as against him: Suing the city, therefore, would be reaching Burnett by a circuitous route.

The authorities in this state are to the effect that where a person creates any nuisance for which the city is required to answer, the wrongdoer is primarily liable, and the city secondarily, as it were. But it developes here that the plaintiff has en

tered into a covenant with Burnett, the wrongdoer, not to sue him, for which he paid her $125.00. If, then, she had sued Burnett, instead of the city, he could successfully defend under this covenant.

The rule is different, where the parties are joint wrongdoers,-joint tort feasors. The right of action is joint, or several. One or both may be sued. And, if either one is required to pay anything, he can not recover any part of it from the other, although the other is just as much to blame or more so than the one who pays. Where, however, the injured person enters into a covenant with one joint tort feasor "not to sue" him, the amount paid for it is a satisfaction of the amount of the claim pro tanto.

Now, unless this covenant "not to sue" Burnett is available to the city as a defense in this action, and the city can recover from him, notwithstanding this covenant, then the plaintiff would be able to deprive him of the benefit of the covenant, and to accomplish something indirectly, that she could not do directly, viz., compel him to pay the damages found as the result of a lawsuit, from which this contract was supposed to protect him. This can not be. It works injustice, and is against public policy and good morals.

I therefore hold that the city occupies the position of surety as it were, fo Burnett, under the contract and the imposed duty to keep its streets open, in repair, and free from nuisance, and that when sued for his negligence, in that behalf, every defense otherwise available to him is available to the city.

Holding these views, I will arrest the evidence from the jury, and enter a judgment for the city, under the undisputed facts.

1921.]

Loan Association v. Factor et al

DETERMINATION AS TO THE STANDING OF LIENS SUBSEQUENT TO THE CANCELLATION OF A MORTGAGE BY MISTAKE.

Common Pleas Court of Montgomery County.

THE STATE SAVINGS & LOAN ASSOCIATION V. NATHAN FACTOR ET AL.

Decided November, 1920.

Mortgage Cancelled by Mistake-Land Transferred and Judgments Attach-Priority of Such a Mortgage-Distinguished from that of ar Unrecorded Mortgage-Canceliation Set Aside and Subsequent Liens Attach Only to the Equity of Redemption

Where a mortgage has been cancelled by mistake, a court of equity may grant relief to the mortgagee and set the cancellation aside. notwithstanding that since the cancellation of the mortgage judgment liens have been attached to the land.

PATTERSON, J.

This is an action to set aside the cancellation of a mortgage on the grounds of mistake. Plaintiff says in its petition that on the first day of September, 1910, it loaned the sum of $3,500 to Bertha and Louis Bilenkin, and received in return their duly executed note and mortgage. The property described in the mortgage is known as lots No. 8666 and 8667, of the revised plat of the city of Dayton, Ohio. On the 14th, day of May, 1912, the sum of $1,800 was paid upon the principal of said note, and said mortgage was released as to lot No. 8666.

On the 14th, day of May, 1912, Nathan Factor and Esther Factor, in consideration of the sum of $1,800, to them paid by the plaintiff, executed and delivered to it, their promissory note for said amount, and, in order to secure the payment of same, executed and delivered to plaintiff, their mortgage conveying lot No. 8666, of the revised plat of the city of Dayton, Ohio, as security for the payment of the same.

On the 5th, day of February, 1914, Bertha and Louis Bilenkin conveyed by warranty deed to Esther Factor, lot No. 8667, and

Loan Association v. Factor et al.

[Vol. 23 (N.S.)

by the terms of this deed the title is warranted clear, free and unincumbered, although at the time there was an unpaid indebtedness on the mortgage of plaintiff in the sum of $1,700. On the same date, Nathan Factor and Esther Factor, conveyed by quit claim deed, lot No. 8666, to Bertha Bilenkin, and in this deed no mention is made of plaintiff's mortgage on said real estate securing note of $1,800 and unpaid.

Plaintiff says that at the time of these conveyances, it was not notified thereof, nor did it learn of the same until within a few months prior to the commencement of this action. Bertha Belinkin continued to pay interest on the loan of $1,700 on lot No. 8667, when in fact she was the owner of lot No. 8666, and upon which plaintiff held a mortgage for $1,800, and Nathan Factor continued to pay interest on the loan of $1,800 on lot No. 8666, when in fact, Esther Factor, his wife, was the owner of lot No. $667, upon which plaintiff held a mortgage securing a note upon which there was due at the time, $1,700 as above set out.

On the 11th day of August, 1915, plaintiff was notified that Bertha Belinkin's property had been conveyed to one Lena Straitman, and that said Lena Straitman had assumed and agreed to pay plaintiff's loan, and accordingly the loan then carried on plaintiff's books in the name of Bertha Belinkin, which was a loan of $1,700 on lot No. 8667, was transferred into the name of Lena Straitman, when in fact, the property conveyed to said Lena Straitman was lot No. 8666, upon which plaintiff held a mortgage securing a note for $1,800.

On or about the 5th day of November, 1915, Lena Straitman, desiring to pay the note held by plaintiff association, by her agreed to be paid, requested the amount due. Plaintiff gave the amount as $1,700 and interest which she paid. Plaintiff then

cancelled and delivered the note to said Lena Straitman, and on the 5th day of November, 1915, released of record said mortgage on lot No. 8667, when in fact said Lena Straitman was the owner of lot No. 8666, upon which plaintiff then held a mortgage securing a note for $1,800.

Plaintiff prays that the release of mortgage of Bertha Bilenkin and Louis Bilenkin, which mortgage is recorded in Vol. 323,

1921.]

Loan Association v. Factor et al.

page 87 of the mortgage records of Montgomery county, Ohio, said release dated November 5th, 1915,--be cancelled, recinded and declared of no effect; that the original note and mortgage be surrendered to plaintiff, that the said mortgage be declared a first and valid lien on the real estate described in said mortgage, and that defendants be required to set up their interest in said property, and for such other and further relief as plaintiff may in equity be entitled to.

Plaintiff names as defendants in its petition, E. J. Miller, the Dayton Savings & Trust Co., and W. R. Craven as executors of the will of Michael R. Chambers, and Hyman Thal, and alleged that they claim some interest or lien on the real estate described in the petition or on part thereof.

In addition to the above named defendants. plaintiff also names as defendants, Esther Factor, Bertha Bilenkin, Louis Bilenkin and Lena Straitman.

Lena Straitman filed her answer and cross-petition in which she sets up the source of her title to lot No. 8666, and asks that the unreleased mortgage thereon be released.

The defendants, W. R. Craven and the Dayton Savings & Trust Co., as the executors of the will of Michael Chambers, deceased, filed their answer and cross-petition in which they allege they have no knowledge as to matters and things set forth in the petition and therefore deny the same and demand proof thereof, but admits the record and release of record of the mortgage as averred in the petition. They allege by consideration of the Court of Common Pleas of Montgomery county, Ohio, on the 23d day of November, 1917, in action No. 42691, of said court, they recovered a judgment against defendants, Esther Factor and Nathan Factor and other parties in the sum of $729.34, with interest thereon at six per cent. per annum from November 23d, 1917, and also $13.75, their costs, together with accruing costs amounting to $8.75, which is wholly unpaid and unsatisfied

They further allege that on the 6th day of August, 1918, an execution was duly issued on said judgment, and, for want of goods and chattels thereon to levy, was on said day duly levied on the real estate described in the petition, which levy still sub