Shaw v. Erskine

Tenney, C. J. Mortgages of real estate include not only those made in the usual form, in which the condition is set forth in the deed, but also those made by a conveyance, [373] appearing on its face to be absolute, with a separate instrument of defeasance of the same date, and executed at the same time. R. S. of 1841, chap. 125, sec. 1. As in other cases, we resort to the common law, in order to know with precision the definition of the term “ defeasance.” “A defeasance is a collateral deed, made at the same time with a feoffment or grant, containing certain conditions, upon the performance of which, the estate created by such feoffment or grant, may be defeated. The word is derived from the French, defaire, to defeat or undo, infection reddere quod factum est. 4 Cruise Dig., 82. The foregoing definition does not embrace the case of a bond of the grantee in an absolute deed of conveyance of real estate, given to convey the estate to a stranger, or third party. This would be quite a different transaction from that in which the absolute conveyance would be simply defeated. And it has so been held by elementary writers. To make a good defeasance, it must be by deed. It must recite the deed it relates to, or at least the most material part thereof. It is to be made between the same persons that were parties to the first deod. It must be made at the time, or after the first deed, and not before. It ought to be made of a thing defeasible. 1 Inst., 236, 237; 2 Black., 342; 3 Lev., 237; 2 Jac. Law Dic., 230. In Treat v. Strickland, 23 Maine R., 234, the court say, “ The court do not consider that the deed from Samuel Smith to Pierce and Treat, and their bond to Edward and Samuel Smith, constitute a mortgage of the estate.” It is very clear that the deed of Martin G-reely to the defendant, and the bond of the latter to Reuben L. Keene, recited in the bill, and among the exhibits of the case cannot be regarded as a mortgage; and therefore there is no foundation for the complaint and the relief sought thereby. Other objections to the maintenance of-the suit are presented and argued, but their consideration is unnecessary in enabling us to make a final disposition of the case. Bill dismissed, with costs.