M'ARTHUR 'lJ. SCOTT.
521
place of performance, and, if the interest allowed by tIle place of performance is higher than that permitted at the place of contract, the parties may stipulate forthe higher interest without incurring the penalties of usury. 'fhe converse of this proposition is also well settled. If the rate of interest be higher at the place of contract than at the place of performance, the parties may lawfully contract in that case also for the higher rate. These rules are subject to the qualification that. the parties act in good faith, and that the form of the transaction is not adopted to disguise its real character."
Adopting these deciBions aB controlling in the preBent caBe, it must be held that the contract here, being valid by the law of Rhode IBland, where it was made, is not affected by the fact that the notes evidf'ncing tpeloan were made payable in New York city. The motion is therefore denied.
McARTHUR and others v. (Oi'I'c'Uit (Jou'!'t,
SCOTT
and others.
8. D. Ohio, W. D. June 22, 1887.)
)lORTGAQB<,-Co·TENANCY-CLAnt: FOR RENTS AND PnOFITS-PmORITY.
The lien of a mortgage executed by one co·tenant pdor to the institutJ()Dof a suiUor partition, and for the recovery of rents and profits, is superior to . the claim for rents and profits decreed in such suit.
Lawrence Maxwell, for complainants. Selden S. Cook, for respondents. JACKSON, J. For the rents and profits charged against the defendant Crookham herein the C?mplainants claim a lien upon the land assigned to him under the partition prior to the lien of certain mortgages made before the institution of thiB suit. In June, 1871, and June, 1873, Lawrence Crookham was possessed of about 600 acres of the McArthur lands in Pickaway county, including 205 acres purchaBed in 1880 by George L. Crookham; and, while so possessed of Baidland, borrowed of Richard Dempsey $3,000 in June, 1871, and $3,000 in J1,lne, 1873, and to secure Baid BUmBg&ve said Dempsey at the date of each loan a mortgage upon the whole of said 600 acres. After Dempsey's death, in 1880, the mortgage debts being unpaid, his executors, under the power conferred upon them by section 6181), Rev. St. Ohio, transferred and assigned said claimB and mortgages to Jane Cooke, a legatee under the will, who has since held and owned the sa.me. The balance remaining due and unpaid . '. thereon was over In the partition proceedings had herein there was allotted, in 1886, to George L. Crookham 54 acres, and to Lawrence Crookham 73 .acreB, of said land, by metes and bounds. It iB well settled the mortgageB of 1871 and 1873 attached to this land BO allotted or assigned to said Crookham. On the nineteenth of January, 1887, this court, by the decree of that date, found that George L.CrMkham was indebted to the complainants and cross--complainants ·for rents and profits from August, 1885, tq.Q9"
, FEDERAL REPORTER.
tober, 1886,' in the sum of $2,000. It is now claimed by complainants that tbis claim for rents and 'profits has priority over the lien ofsaid mortgagee upon said lands., · III support of this proposition weiare cited cases: ; 1{ines "'; Munnerlyn, 57 Ga.32, and 71 Ga. 14; to 'WT1,ght fv.Jf1"l{lht, 59 How.Pr.186; Scott v. Guerr18ey,4.8 Y. 106. Georgia case (Ri'l1Je8 V. Mwn,nerlyn) seems tq support this claim, but it does not appear fromli.n examination of that case when the Iilortgage was executed, whether before or after the co-tellant'sclaim for rents and profiilJ accrue4. , His not a direct authority, therefore, in the, present case. tbat case was executed l;>efore the claim But, assuming that the for and, profits tl;tedecision is not iJ:).ihp.rmony with the which is general current of authority on this question. The general sanctioned by the great weight of authority, is that the equitable claim for rents and profits reof one tenant in common agaifist' his ceived in excess of his share, is lrUperior omy to mortgages or liens; that prior m,prtgagees,orincumbrancersare,nQttleeessary or proper parties to partition proceedings between'co-tenants; and' that the rights of such prior mortgageesll,re Qptt,o ,be affected by such, partition proceedings. Wollen v. Capeland, 7 Johns. Ch. 140; Hannan v. Osborn,4 Paige, 343; Mes,ds!v. :Lanwingh, 1 ,Paige, 125. See, also,' Freetn.Co-Tenancy; caees cited,: ': , ' " ,,', 'f Our 'coriClusion' is tijat fOf rents iand profits, as against Crookham, is subordinate to the mortgages held by Miss Cooke. It is accordingly so ordered and !l ,. ;.
(
"
and " , I ': .·. ' .
'(lh'ro-uu Court. lJ.Ma{l;acku,eu8. March 11, lSSr.) ,, " '
InEquity.
On motion to reopen.
COLT; J. I ,have again gone over this case, and conaidered the arguments ,brought forward by the parties. I can find no error in the ,j