Sawyer v. Fisher

Shepley, C. J., orally.—The question is, whether the property passed absolutely, so that a purchaser, who had no notice, could hold as against the plaintiff. It is obvious that it was not the purpose of the parties, that the plaintiff should fully part with his property till payment. The title was intended to pass, subject to incumbrance, subject to a “ full and perfect lien.” That intent is to prevail, if the rules of law will permit. When the common law itself raises a lien, possession must be continued. The law, though it raises the lien, does not continue it. ' But that law does not prohibit parties from making a lien by contract, and stipulating the mode of retaining it and of rescinding it. It is contended, however, that this contract was a mortgage, [31] and that it is void by the statute, because not recorded. The statute does not embrace liens. If this view exposes innocent purchasers to loss, it is but like various other laws. Many persons have an apparent right to sell property, who could convey only a defective title. Purchasers must explore the history of the property. If the law of caveat emptor be unsuitable, it is for the Legislature alone to alter it. Action to stand for trial.