ders the same to whomsoever the court may find entitled thereto, for the redemption of said mortgage." Neither the plaintiff nor Reed was a party to the foreclosure suit brought by Sprague, but Evan Evans was.

This suit was brought to quiet title to the premises in dispute.

It will be observed that the note given to Mamie J. Waters by Evan Evans became due November 17, 1914, and by force of Ohio decisions, as between them, she became invested with the title to the real estate. Bradfield et al. v. Hale et al., 67 Ohio St., 316.

The question in this case is, Since the deed by Mrs. Waters to Reed was not accompanied by an assignment of the note and mortgage what was the effect of that conveyance? The authorities are divided on the question, some holding that a conveyance by a mortgagee out of possession, without an assignment of the mortgage indebtedness, conveys no title (Vermeule v. Vermeule, 113 Me., 81, 93 Atl. Rep., 40); while others hold that a deed by a mortgagee out of possession conveys not only the legal title but is in equity an assignment of the mortgage debt (Sadler et al. v. Jefferson et al., 143 Ala., 669, 39 So. Rep., 380). We are persuaded that a deed of general warranty by a mortgagee not in possession, after condition broken, carries with it the ownership of the mortgage indebtedness, even if there is no actual assignment or transfer to the grantee of the note and mortgage. The grantor in such deed is estopped by its recitals to claim any interest in the mortgaged premises, and

McGowan v. Best.

[13 Ohio his assignee of the note and mortgage, with notice, is likewise estopped. In the instant case, when the note and mortgage were assigned to W. R. Sprague, H. B. Reed, the grantee of Mamie J. Waters, was in possession, and such fact was sufficient to put Sprague upon inquiry as to the state of the title, and an investigation would have led to knowledge of the existence of the deed from Mrs. Waters to Reed. When the defendant purchased Sprague's claim he stepped into Sprague's shoes. He was bound to take notice of Reed's possession and must be charged with knowledge of the deed to him.

The suit in foreclosure was a nullity so far as the rights of the plaintiff were concerned, as he was not a party. But the important question is, What became of the equity of redemption of Evan Evans? He was a party, and on the face of the record in the foreclosure suit his equity of redemption was extinguished. If we are correct in holding that the deed to Reed conveyed to him all the interest of Mamie J. Waters in the mortgage indebtedness, then there was no foreclosure, no sale, and no change of title, because the plaintiff, as the grantee of Reed, still held the title as between him and Evans. So, if by the proceedings to foreclose, there was no change of title, then it must follow that there was no extinguishment of the interest of Evan Evans. His interest was the amount remaining after the satisfaction of the mortgage indebtedness. After the pretended sale in foreclosure that amount could not be calculated, because the mortgage indebtedness, which was a lien on the premises, had not been pleaded or adjudi

cated in court, the owner thereof not being a party to the proceeding.

The mortgagor, Evan Evans, having conveyed his interest to the defendant by deed the plaintiff and defendant stand in the same relation to each other as the original mortgagee and mortgagor, and the defendant, having paid into court the full amount of the mortgage indebtedness, is entitled to be adjudged the owner of the property.

The decree will be in his favor.

Decree accordingly.

WALTERS and MIDDLETON, JJ., concur.

HARTH, A TAXPAYER, V. THE CITY OF CINCIN

NATI ET AL.

Constitutional law - Municipal corporations - Assessments and bond issues - Street improvements - Replacement or reconstruction of street railway tracks, etc.-Sections 3812-2 and 3812-3, General Code (108 O. L., 215) — Section 6, Article VIII, Constitution - Lending public credit to private corporation. Sections 3812-2 and 3812-3, General Code (108 O. L., pt. 1, 215-218), which provide for the replacement or repair of worn out or defective rails, ties, etc., of street railway companies in streets of municipalities, when such streets are to be paved, repaired, improved, etc., and in case the railroad companies fail to do so authorize municipalities to make such replacements, repairs, etc., and to assess the cost against the railway companies, and issue bonds in anticipation of their collection, are invalid, being in contravention of Section 6, Article VIII of the Constitution of Ohio, which prohibits municipalities from raising money for or loaning their credit to any joint stock companies, corporations or associations.

(Decided April 12, 1920.)

APPEAL: Court of Appeals for Hamilton county.

Mr. Walter M. Schoenle, for plaintiff.

Mr. Saul Zielonka, city solicitor, and Mr. William Jerome Kuertz, assistant city solicitor, for defendants.

HAMILTON, J. The plaintiff, Edward J. Harth, as a taxpayer of the city of Cincinnati, Hamilton county, Ohio, on the 23d day of January, 1920, in writing, requested the city solicitor of Cincinnati to file proceedings in a court of competent jurisdiction to enjoin the defendants from proceeding further under the resolutions of the city council of Cincinnati, passed November 18, 1919, declaring the necessity of requiring the Cincinnati Street Railway Company and the Cincinnati Traction Company to renew and replace rails, etc., along Freeman avenue, under the ordinances of the city of Cincinnati passed November 25, 1919, and December 23, 1919, being ordinance No. 344-1919 and ordinance No. 388-1919, and to enjoin the city auditor from delivering to the trustees of the sinking fund of the city of Cincinnati the assessment bonds for the improvement of Freeman avenue by the construction of rails, ties, roadbed and tracks, authorized under ordinance No. 388-1919, in the sum of $60,800, which the board of sinking fund trustees had agreed to purchase.

The solicitor refused to bring the action requested, and the plaintiff as such taxpayer of said city brought the action on behalf of the city in the superior court of Cincinnati for purposes as stated

in the above request to the city solicitor, and, by the petition, challenged the constitutionality of the statute of the state of Ohio passed April 17, 1919, found in 108 Ohio Laws, part 1, pages 215 to 218, inclusive, which is the authority for the ordinances and resolutions above referred to.

The defendants filed demurrers to the petition on the ground that the petition did not state facts. sufficient to constitute a cause of action against them. The court below sustained the demurrers to the petition, and, the plaintiff not desiring to plead further, judgment was entered in favor of the defendants and the petition was dismissed. Thereupon, the plaintiff appealed the case to this

court.

The question for determination involves the constitutionality of supplementary Sections 3812-2 and 3812-3, General Code of Ohio, passed April 17, 1919, and found in 108 Ohio Laws, pt. 1, 215.

In substance, this statute provides that where a municipality finds it necessary to improve a street by paving, repaving or resurfacing, and in said. street there are located railroad rails, ties, roadbed or tracks of a street railway company, which rails, ties, roadbed or tracks have become worn out or defective, and, upon notice, the street railway company fails or refuses to renew, replace or reconstruct the rails, ties, roadbed or tracks in accordance with the plans and specifications furnished by the municipality, the municipality may proceed to make such reconstruction, and assess the costs thereof against said railway company; and, upon failure of the company to pay the assessment of the cost in cash, the municipality may, by ordi