Lady Superior of the Congregational Nunnery of Montreal v. McNamara

The Chancellor. The execution'of the bond and mortgage to Alien, under the circumstances disclosed in this case, ‘constituted him a trustee for the ladies of the nunnery whose 'debt was intended to be secured thereby ; so’that if he had neglected to execute the assignment pursuant to the arrangement, or if, for any reason, the assignment executed by him was "technically invalid, such bond and mortgage would still have cfe [378] ated a lien upon the mortgaged premises from the time of The recording of the mortgage. • And a court of equity would have compelled Allen either to execute a valid assignment of such bond and mortgage, or would have decreed a foreclosure thereof for the benefit of those whose debt was intended to be secured thereby. The delivery of the bond and mortgage to Allen, the nominal mortgagee, to enable him to execute the assignment endorsed upon the mortgage, was a sufficient delivery to, and an acceptance thereof by Allen, to give effect to those instruments ; especially when the mortgage was acknowledged by the mortgagor and put upon record for the purpose of giving effect to it as a valid security. A deed may be delivered to a stranger, for the grantee named therein, without any special authority from the grantee to receive it for him. And if the grantee assents to it afterwards, the deed is valid from the time of the original delivery. Omnis ratiliabitio retro trahit-ur et mandata seu licentia equiparatur. (Wing. Max. 485.) It is upon this principle that it has frequently been held that a delivery of a deed to the proper recording officer to be recorded, if intended to vest the title immediately or absolutely in the grantee, either as a trustee or otherwise, is a valid delivery ; if not afterwards dissented from by the grantee. (Tompkins v. Wheeler, 16 Peters’ Rep. 106. Ingram v. Porter, 4 McCord’s Rep. 198. Dawson v. Dawson, Rice’s Eq. Rep. 244.) Here the nominal mortgagee, Allen, had consented beforehand to take the bond and mortgage for the purpose of assigning them to the complainant. It was not necessary, therefore, in consummating the arrangement, that any particular formality should be observed at the time the bond and mortgage were presented to him to obtain his assignment thereof. For the placing them before him to obtain his signature to the assignment was a good delivery, and his signature to the assignment was an absolute acceptance by him. The delivery of the assignment to McNamara, for the benefit of the complainant, was also a good delivery of the assignment to her, unless she dissented; of which there is no pretence in this case. And the act of bringing this suit to foreclose the bond and mortgage, as the assignee thereof, was of itself [379] an assent to the assignment to her; and relates back to the time when such assignment was delivered to McNamara for her benefit. Besides, there is in this case evidence from which it may fairly be inferred that the bond and mortgage, with the assignment, were transmitted to the agent of the ladies of the nunnery at Montreal, and received by the complainant immediately after their execution. But even if the complainant had never heard of this bond and mortgage and assignment until after the recovery of the appellant’s judgment against McNamara, it would not have altered her legal and equitable rights in this case. For the absolute delivery of the bond and mortgage to Allen, in trust to assign the same to her, and the delivery of the assignment to McNamara for her use, vested the title thereof in her immediately on such delivery of the assignment, although it was delivered to the mortgagor. For if he had afterwards refused to deliver this assignment to her she might have compelled its delivery by suit. The cases of Doe, ex dem. Garnous, v. Knight, (5 Barn. & Cress. 671,) and of Church v. Gillman, (15 Wend. Hep. 656,) are directly in point to show that a deed absolutely delivered to a third person, for the use of the grantee, is a present deed and takes effect from the lime of such delivery, although such third person was not authorized by the grantee to receive it; if such grantee afterwards assents'to it. Such assent will also be presumed from the beneficial interest of the grantee or obligee in the deed, unless a dissent is proved. Some of the earlier cases on this subject went even so far as to declare that the delivery of the deed to a stranger, for the use of the grantee, made it a good deed in presentí, although the grantee refused to accept it when offered to him by such third person. (Taw, executrix, v. Bury, Anderson's Rep. 4; 2 Dyer, 167, b, S. C.) But it was afterwards held, that where a deed was delivered to a stranger who had no authority to receive it for the grantee, and such grantee refused to receive it, (he delivery was invalid, and the deed lost its force. (See Rutler and Baker's case, 3 Coke's Rep. 26, b; Whelpdale's cast, 5 Idem, 119, b; and per Holt, C. J. 1 Salk. 307.) [380] ' It is no valid objection to this assignment, especially in this court, that the complainant was not described therein by name. It is admitted that at the time of the execution of the bond and mortgage, and the assignment, she was the lady superior óf the Congregational Nunnery of Montreal, and authorized by the laws of Canada to receive and collect the debts due to the ladies of that institution. An assignment to her by that description identified the assignee with as much certainty as if she h'ad been described by her name. In the case of Shaw and others v. Loud, (12 Mass. Rep. 447,) where a bond and mortgage had been given to the plaintiffs by the description of the heirs at law of John Tyrrél, without mentioning any of their names, he being dead at the time óf giving such bond and mortgage, the court held the securities to be valid. And Chief Justice Parker, who delivered the opinion of the court, says a deed made to the heirs at law, of a deceased person, is good; because the persons who are to take can be ascertained by extrinsic testimony. In the case of Stromour v. Rottenbury, (4 Dess. Rep. 268.) the court of chancery in South Carolina held that a deed of slaves, to the grantees therein, by no other name than that of. the grandchildren of the grantor b'y' his daughter Catherina; was valid, and conveyed the property tó her children who were in esse at the lilhe of the execution of the deed. And a similar decision Was made in the case of Hagg and wife v. Odom, (Dudley's Geo. Rep. 185;) where the grantees were not named by the grantor, but viere described as the children of Nancy Jones. But a grant to an individual named, and his associates, appears tó be too uncertain and in definite to convey any thing to óthérs than the individual named in the deed. (Duncan v. Beard, 2 Nott & McCord's Rep. 400.) There is no-foundation for the suggestion that McNamara intentionally gave the bond and mortgage for more than was actually due, for the purpose of defrauding his Creditors. The admission of the indebtedness by McNamara, at the time óf tíre giving of the bond and mortgage, as the same was stated in thé letter to him from the agent of the ladies of the nunnery ’á‘t Montreal, and the execution óf those securities for that amount [381] was sufficient evidence of the indebtedness, not only against the mortgagor but also as against the appellant who claimed under him, through the subsequent judgment. The stipulation of the appellant to, admit that a certain sum was due, was not an admission on the part of the respondent that the whole amount mentioned in the bond and mortgage was not actually due. Her counsel, therefore, if he had thought proper, might have claimed the whole sum secured by the bond and mortgage, with interest thereon. But as the complainant only asked for a decree for the smaller sum mentioned in the stipulation given by the adverse party, the probability is, that some mistake hqd occurred in stating the, account, or in reducing the Canada currency, in which the account was stated in the letter of the agent, into dollars and cents. Such an error, however, if it occurred, would not render the deed fraudulent. There is therefore no error in the decree appealed from, and it must be affirmed with costs. And if the proceeds of the mortgaged premises, upon a sale thereof under the decree, should not be sufficient to pay the amount due upon such decree and the costs, together with the expenses of the sale, the appellant must pay to the respondent the value of the rents and profits of the mortgaged premises during the time the sale has been suspended by this appeal, or so much of the value of such rents and profits as may be necessary to pay the deficiency; as the respondent’s damages for the delay and vexation caused, by such appeal. And the respondent is to be at liberty to apply for a reference to ascertain the amount of such damages, if necessary.