Hill v. More

Appleton, J, On March 17, 1835, E. H. Ayer conveyed the demanded premises to True Woodman, in mortgage, to secure the performance of a bond or contract he had given to said Woodman,,conditioned to support him and his wife during their natural lives, and to do and perform certain other things therein specified. On Eeb. 15, 1845, True Woodman entered to foreclose his mortgage for condition-broken. The defendant offered to prove, if admissible, and of the admissibility of this evidence there can be no question, that Ayer had broken the conditions of his bond in several particulars, before the entry of Woodman to foreclose; and that after such entry, Woodman-remained in possession of the mortgaged premises until March 27, 1845, when he conveyed the same, by deed of warranty, to the defendant, who, at the same time, gave back a mortgage to said Woodman to secure the performance of a bond given for his support and that of his wife; that the defendant performed all the terms of the bond, and supported Woodman and his wife till their death, and since their decease, has remained in possession to the present time. It was in proof, on the part of the plaintiff, that on March 24, 1844, E. H. Ayer mortgaged the same premises to Mark Hill, under whom the demandant derives her title. In deducing her title, the demandant shows that she is only entitled to a life estate. The writ alleges a fee, and the evidence fails to show that the demandant has a fee in the demanded premises. Were the plaintiff entitled to recover, an amendment might be allowed, by which this objection would be avoided. The title of the tenant, if legally connected with the mortgage of Ayer to Woodman, is prior to that of the demandant, who claims by a subsequent mortgage from the same Ayer. The demandant, however, denies the entry to foreclose to have been legally made, and that the tenant [523] can avail himself of the mortgage given by Ayer to Woodman to defeat the present action. The bond of Ayer to Woodman, to which reference has already been had, after reciting conditions, proceeds as follows : — “ Now if the said Ebenezer H. Ayer, shall well and truly perform all the above conditions in the above bond, then the above obligation for one thousand dollars to be void; otherwise, to remain in full force and virtue, and we agree that should either party be dissatisfied with the fulfilling of the above bond, it shall be submitted to Ebenezer White-house, Moses Emery, jr., and John Verrill, and their decision shall be final.” The ground taken in the defence is, that as these referees have not decided, that there has been a breach of the conditions of the bond, there could be no valid entry to foreclose, and, consequently, no foreclosure. It is fully proved, by the admissions of Mark Hill, and the other proof adduced, that there was a breach of the conditions of the bond given to True Woodman, prior to his entry to foreclose. It is insisted by the counsel for the plaintiff, that an adjudication of such breach is an essential prerequisite to a valid entry by the mortgagee, and constitutes the only proof by which a breach of the bond can be established. An agreement to refer or a general provision that all disputes which may arise in the execution of a contract shall be decided by arbitrators, will not be allowed to deprive this Court of its jurisdiction. Thompson v. Charnock, 8 D. & E. 139 ; Haggard v. Morgan, 4 Sandf. S. C. 198. It is undoubtedly true, that parties may by agreement “ impose a condition precedent with respect to the mode of settling the amount of damage or the time for payment or any matters of that sort which do not go to the root of the action.” Avery v. Scott, 8 Exch. 497. But in this case no condition precedent to an entry is imposed. Nothing in the bond prevents the entry of the mortgagee whenever a breach of the condition has accrued. The case is within the principles laid down by Lord Campbell in Livingston v. Ralli, [524] 30 Eng. .Law & Eq. 279, where he says, “ though an agreement to refer has been considered no bar to an action upon the subject agreed to be referred, the language of Courts and J-.udges has.always been, that if the party was damnified ■by the refusal to refer, he might bring an .action.” If True Woodman, having legally entered .for condition broken, and remaining in possession of the mortgaged premises, conveyed the same by deed of warranty to the tenant, such conveyance would transfer to him the legal possession of the same. “A mortgagee,” remarks Shaw, C. J., in Hunt v. Hunt, 14 Pick. 374, “ especially after entry for foreelos-' ure, is considered as having a.legal estate which may be alienated and transferred by any of the established modes of conveyance, subject only, until foreclosure, to be redeemed by the mortgager.” In Freeman v. McGaw, 15 Pick. 82, it was .held, an assignment of a mortgage might be made by quitclaim. In Lawrence v. Stratton, 6 Cush. 163., the Court held, that a warrantee deed would convey all the right the mortgager had in the mortgage, which is a conditional fee, and would also operate as an equitable assignment of all interest in the notes secured by it. In Given v. Doe, 7 Blackf. 210, .it was held,] that a mortgagee in fee of .real estate has the legal title to the estatej and the same right to transfer it by deed that he has to convey by .deed the legal title of .any other real estate. In that case, there was no legal assignment of the mortgage debt, but the Court held the grantee had the legal title to the land andan equitable claim to the debt. “ Such separation,” says Blackford, J., “ of the legal title to the land from the claim at law frequently occurs.” So it has recently been held in New York, that although a sale made by a mortgagee is irregular, his deed operates as an "assignment of the mortgage. Olmsted v. Elder, 2 Sanf. S. C. 325. In that case, the Court say, “The deed was sufficient, at loast to transfer to the defendant the money due upon the mortgage. The interest on the mortgage was in arrear, and the mortgagees were entitled to foreclose or to sell under the [525] statute. The defendant, therefore, occupies the position of a mortgagee in possession of the mortgaged premises,” &c. In Crooker v. Jewell, 31 Maine, 306, it was decided, that a mortgage might be assigned by deed of quitclaim. In Lincoln v. White, 30 Maine, 294, the interest of a mortgagee, before the foreclosure had become perfected, was conveyed by deed, and the conveyance held valid. The tenant being lawfully in possession by warrantee deed from the mortgagee in possession, Ms grantor would be estopped from questioning his title, and if, being defeasible at the time of the grant, it should subsequently become perfect, it would inure to his benefit. Pike v. Galvin, 29 Maine, 183; Baxter v. Bradbury, 20 Maine, 260. The tenant, then, connecting his possession and title with that of the mortgagee, who had legally entered to foreclose, cannot be ejected by the owner of the equity of redemption, though the mortgage debt may have been paid or discharged since such entry. The only remedy, which the law recognizes in such case, is by bill in equity, where the rights of all parties can be equitably adjusted. Parsons v. Welles, 17 Mass. 419; Hill v. Payson, 3 Mass. 559. Upon the evidence before us, the plaintiff fails to show a right of action as against the tenant, and a nonsuit must be entered. Plaintiff nonsuit.