Freeman's Bank v. Vose

The opinion of the Court was by Whitman C. J. 'This cause must be considered as having been set down for argument upon the bill and answer; the facts to be gathered from which are, that, on the eighteenth day of November, 1836, Messrs. Wheeler and Perkins made a deed conveying a certain parcel of real estate to the defendant and one Spaulding. The deed in its terms is absolute • but, from certain recitals at the close of it, it would seem, that the parties may have-intended to make it'conditional. The recital however, stops without the necessary conclusion to make 100 it so; and is therefore senseless and inoperative. And on a proper bill for the purpose being presented, if it appeared that a mortgage was actually intended, and that the omission to make it so was from accident, the Court might reform it, if it were between the original parties to the deed. But, as the deed now stands, it must be regarded at law as having conveyed an absolute estate to Yose and Spaulding: and the title has now, under that deed, and by virtue of conveyances from Vose and Spaulding, and one Hallet, under Spaulding, passed to Joseph Eaton. The- title in Eaton, therefore, has become perfect and indefeasible, unless he purchased with knowledge, that the estate was intended, by Wheeler and Perkins and their grantees, to have been conveyed in mortgage: in which case the conveyance as to him would be subject to be reformed, so that he would hold it only as mortgagee. But it can probably make no difference to him, whether his estate in the premises is a fee simple, absolute or conditional, for tbe right of the mortgagors to redeem, if the conveyance is to be regarded as a mortgage, would depend on the payment of the whole amount due to the plaintiffs, and to the Neguemkeag Bank, and to said Eaton; the amount of the debts of whom may very much exceed the value of the premises; and in such case render it morally certain, if the deed of Wheeler and Perkins were reformed into a mortgage, that neither they, nor any one under them, would ever redeem the premises. The defendant does not question the efficacy of the deed to him and Spaulding, either as an absolute deed, or a mortgage ; and, in either case, in trust for the payment of debts due to the plaintiffs and others; and he has conducted in reference to it, so far as appears, in entire good faith; and has, at the express request of the plaintiffs, made a conveyance of his estate in the same to the said Eaton. Personally he has realized nothing from it. Eaton, according to the statement, would seem now to have become the trustee of the plaintiffs, and of the Neguemkeag Bank, for the balance remaining in his hands, after paying the amount due to himself. As he has not been made a party to this bill, however, we are not to be 101 understood as adjudicating upon bis rights and liabilities. The plaintiffs appearing to have no well founded claim against the defendant, the bill must be dismissed. The defendant may be allowed his costs.