Mills v. Darling

Hathaway, J. Benjamin G. Campbell and his wife, in her right, conveyed the demanded premises to the demandant, who at the same time gave her a bond, conditioned to convey the same to her on her payment of certain notes of the same date, given by him to Charles E. Mills, of which she subsequently paid a part only, which was endorsed on the bond. The question is, whether or not the deed and bond constituted a mortgage. The counsel for the plaintiff insists, that the bond cannot operate as a defeasance within the meaning of R. S., chap. 125, sec. 1, because, “ the deed was from two persons, and the bond to one person,” [567] But the land belonged to the wife, and the husband joined in the deed merely to enable her to convey it. A conveyance to her, as stipulated in the bond, would have restored to both the husband and wife, the same title to the land which was conveyed by their deed to the demandant. It would have been, strictly, a reconveyance. It is also objected that Mrs. Campbell gave no personal security for the money to be paid, as specified in the condition of the bond. It was not necessary that she should give such security. Rice v. Rice, 4 Pick., 349. The demandant is entitled only to the conditional jugdment. Judgment as of Mortgage,