Bean v. Boothby

Danforth, J. The demandant claims the premises in dispute by virtue of a deed of warranty from the tenant to himself, dated December 22, 1860. The validity of this deed is the only question in issue. On the part of the tenant, it is contended that it is void, because at the time of its execution the grantor was, and still is, a married woman, and received her title directly or indirectly from her husband, who did not join in the conveyance. It may be admitted that this proposition is true in law if it were so in fact. But the case shows no facts upon which it can rest. The conveyance to the tenant is in no legal sense either direct or indirect from her husband; if she holds under the mortgage it certainly is not direct, nor can it be indirect, for the title comes from Morrill by assignment of his mortgage. It is true, she traces her title through her husband; but this is not in the legal sense holding by virtue of a conveyance from him. The language of the R. S., c. 61, § 1, limits the wife’s capacity to convey to such real estate only, as has been “ directly or indirectly conveyed to her, or pai'd for by her husband.” The indirect conveyance here referred to, must ¡have the same force and effect as the direct. It must convey the land from the husband to the wife. Direct where it is conveyed at once, to her, indirect when conveyed to her through the medium of one or more intervening persons. The deed from him must be made for her benefit, as one step in the conveyance to her, and for the purpose of getting the estate into her hands. This being accomplished [302] through one or more mesne conveyances, it would be an indirect conveyance to her. When the mortgage to Morrill was made, it was not, so far as appears, made with any expectation that it would be assigned to the wife, or for any such purpose. It was not adopted ^s a means or any instrumentality to accomplish a conveyance to her. A wife is not prohibited from conveying land without the joinder of her husband simply, because he may have once owned it, but because it was conveyed by him to her. But further, as regards this mortgage, the husband had nothing to convey. Morrill’s deed to him, and the mortgage back, were but one transaction. His seisin was but instantaneous, and carried with it no rights whatever, as against Morrill or any one holding under the mortgage. The mortgage being foreclosed, Morrill would not hold- under the husband, but by virtue of his own original title and his assignee, whether immediate or remote, whether the tenant or her grantee, would hold by the same title. Hence it may with propriety be said that the' wife holds neither indirectly from her husband, nor even under him, hut under Morrill. . No one could interfere with her title by virtue of any claims against her husband, no one could disturb her except by showing a title paramount to that of Morrill. But it is said that the assignment of the mortgage to the wife operated as a discharge of it. This may be true under the common law, but not under our statutes as then and now in force. She was authorized to buy and sell property. This mortgage, with the debt thereby secured, was property which she had the same right to purchase and hold as any other. If a note given by the husband to the wife is valid, she must certainly have the right to purchase and hold a note given by him to a third person. Randall v. Lunt, 51 Maine, 246. But it is said that when the tenant took the deed from her husband, her interest under the mortgage merged in that, and she, therefore, held directly from him. Mergers are not favored in law or in equity, and the separate estates will be sustained when the parties so intend, and this intention will be inferred, when justice permits, [303] and the interests of the parties require it. Simonton v. Gray, 34 Maine, 50. N. E. Jewelry Co. v. Merriam, 2 Allen, 390. 2 Washburne on Real Property, 3d ed. 180. The same result follows, notwithstanding the words in the deed of the tenant to the demandant, referring to the mortgage as “having been cancelled by assignment.” Crosby v. Taylor, 15 Gray, 64. The interest of the tenant and her grantee, alike require the upholding of the mortgage, otherwise the creditors of the husband would have taken the whole estate. The tenant tthen received a title from Morrill under the assignment of his mortgage to her. This title she held independent of her husband, not merged in his deed to her, and conveyed to the demandant. There is another view of this case which leads to the same result. The tenant stands in the same condition in relation to the premises in dispute, as did her husband when he gave the mortgage to Morrill. She never had other than an instantaneous seisin. The case finds that the demandant furnished the money with which the tenant purchased the mortgage. The assignment to the tenant and the deed from her, were delivered at the same time and place. The deed of the husband was executed the same day. These facts necessarily lead to the conclusion that all these deeds were part of one and the same transaction; that the tenant received and parted with the seisin at the same time, and by the same act; and that the two conveyances were made to her for an ulterior purpose, which purpose was that the land might be conveyed to the demandant in consideration of the money advanced by him. She was the mere conduit through whom the title of Morrill and her husband passed. She never had an attachable interest in the premises, nor any such seisin as would give her husband any rights under R. S., c. 103, § 17. Nor could he have any rights under his deed. That the seisin may be instantaneous merely, “it makes no difference whether the transaction consists of one conveyance or of several, or whether they are executed between two parties only, or more. If they all constitute one transaction, done at the same time, [304] it matters not how complicated it is. If he is but an instrument or conduit to pass the title to another, it is unimportant how many simultaneous conveyances are made into and out of him.” Haseltine v. Lesure, 9 Allen, 24. King v. Stetson, 11 Allen, 407. Chickering v. Lovejoy, 13 Mass. 51. Webster v. Oampbell, 1 Allen, 313. In any view we can take of the case the demandant takes title of Morrill, and if that mortgage is not foreclosed, that of the husband also, subject only to the paramount rights of his attaching creditors. Judgment for demandant. Appleton, C. J.; Cutting, Walton, Dickerson, and Barrows, JJ., concurred.