Judd v. . Seekins

Miller, J. The judge, at the trial, was clearly wrong in his conclusion that the mortgaged premises were discharged from the lien of the mortgage by the terms of the deed delivered on the 14th day of April, 1873; and the plaintiff estopped by his covenants in said deed, from enforcing said mortgage as a lien upon the premises. The covenant in the deed, that the premises were free and clear of all incumbrances, and the covenant of warranty, are designed to protect the grantee against any incumbrances done or suffered by the grantor; and against any lawful claim or other title by means of which the grantee might be deprived of his rights. Such covenants clearly do not embrace liens or incumbrances which the grantee himself may cause to be created against the premises. The construction placed upon these covenants was manifestly at variance with the design and purposes which they are intended to .answer; and no case has been cited where it is held that such covenants are to be invoked against the acts of the grantee. Independent, however, of this consideration, there are other insuperable objections which prevent the defendant from availing himself of the covenants in the deed of the plaintiff to him, as a defence to the action to foreclose the mortgage. When the mortgage was executed, the defendant William Seekins was in possession of the premises, under a contract with the plaintiff for the purchase of the same, and had paid the contract-price to the plaintiff. This deed bears date on the 1st day of February, 1869, and was duly acknowledged on the twenty-fourth day of November of the same year. In the mortgage executed by said defendant, it is *270 referred to, and admitted as an existing and valid deed ; and, after the description of the premises therein by boundaries, it is stated that they are the same premises conveyed to the said William Seekins by Harrison Judd and wife ; and reference as to the said deed is hereby had for a more particular description of said premises. The defendant thus conceded that the mortgage was executed after the deed ; and that the deed had been executed and delivered prior to the mortgage. If it remained in the plaintiff’s possession, it was with his assent, and for the defendants’ benefit; and it is difficult to determine upon what legal ground, after he has by the most unequivocal language admitted to the contrary, the defendant can now claim that the deed was not actually delivered prior to the mortgage. As the defendant William Seekins admitted that the premises had been conveyed by a deed from the plaintiff and wife prior to the mortgage, he is, I think, estopped from now claiming that such deed was not delivered, and from questioning the validity of the mortgage. Under the circumstances existing, upon equitable principles, which may properly be invoked in a case like this, to further the ends of justice, the deed may also be regarded, by relation, as taking effect at the time of its date, or its acknowledgment. In Pratt v. Potter (21 Barb., 589) it was held that in cases where justice as between the. par ties requires it, and where it will not operate to the prejudice of third persons, a conveyance will be regarded as having been made at the date of the first act to which all the subsequent acts will have relation. (See also, Jackson v. Bull, 1 John. Cas., 85; Jackson v. Bard, 4 Johns., 230; Heath v. Ross, 12 id., 140 ; Case v. De Goes, 3 Cai., 261.) This rule is only resorted to in furtherance of justice; but the propriety of the application of it in a case where it will prevent the enforcement of a lien given to secure an honest demand and to carry out the intention of the parties, cannot be doubted. To sustain the mortgage as a lien and to prevent the merger of the same by the deed, the principle may also be invoked that, in equity, merger never takes place where the *271 requirements of justice or the intentions of the parties demand that it should not. (Sheldon v. Edwards, 35 N. Y., 279, and authorities cited.) Can it be said in the case at bar that the parties intended that the mortgage in question should be canceled without the payment of any consideration whatever? Clearly, not. And to avoid such a result the court would, I think, be justified in the exercise of its equitable powers, if it was necessary to do so, for the purpose of preventing injustice, to direct that the deed be modified so as to preserve the lien of the mortgage. (Champlin v. Laytin, 6 Paige, 189.) The counsel, for the defendant claims that when the plaintiff had paid the renewal notes and become the holder of the same and of the mortgage, he was the only person who had a legal and equitable interest therein. Concede that this position is a sound one, and that the assignment executed on the seventeenth of April, three days after the deed was delivered, must date back as of the time when the last note was paid, the defendant is met by the difficulty that he has admitted the execution of the deed prior to the mortgage, and, with the application of the equitable principle that the deed by relation must be considered to take effect at the time of its date or acknowledgment. The same remark disposes of the point made, that the date is no part of the substance of the deed, and its true date, or life, commences upon its delivery. The question raised, that the covenants estops the plaintiff from asserting any thing to the contrary, is covered by what has already been remarked, and no other point urged demands comment. It may be added in support of the validity of the mortgage, that if the defendant had no title at the time of the execution of the mortgage, in opposition to his admission in the mortgage, then the mortgage would not take effect and become a lien upon the land until the delivery of the deed; and as it then became such lien, the covenants in the deed did not affect it. *272 There should be judgment absolute for the plaintiff, with costs. All concur; Andrews, J., not sitting. Order affirmed, and judgment accordingly.