Allen v. J. W. Lathrop & Co.

McCay, Judge. Without question the common law rules make a mortgage which, on its face was to secure future advances, sufficiently certain : 4 Kent, 175 ; 1st Hilliard on Mortgages, 210-215, where the subject is fully treated and numerous authorities cited. But it is said that our Code changes this rule. Its language is, section 1945 : “ No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given and the property on which it is to take effect.” But this is, in truth, nothing more than the common law required, and amounts only to saying that the form of the undertaking is immaterial. If the material elements of a mortgage are there — sufficient certainty as to what the parties intend — the paper is good as a mortgage, though there be no words of conveyance or any other of the usual forms of a mortgage. In Leeds vs. Cameron, 3 Sumner’s Reports, 492, Judge Story, in commenting upon very similar language in a statute of New Hampshire, the words were: “stating thesum of money to be secured,” says it can hardly be supposed that it was the intent of the Legislature to make void all mortgages for in [137] demnity, and yet this would be true if we are to give this language the restrictive meaning contended for, since it can never be known precisely what is the debt to be secured in such eases, it depending altogether on future events. And so we say as to this section of the Code. It is to have a reasonable construction, and is to be construed in reference to its intent, to-wit: to facilitate and not to hamper and restrict mortgage liens. It requires that the debt or duty of the mortgagor shall be specified ; it does not say that such duly shall he specific and precise. It may be indefinite, as to indemnify a surety for whatever he may pay in a certain event, or to hold one harmless for whatever may happen under certain circumstances. The paper must point out what the parties intend. Here the intent expressed is that the mortgagor shall pay to the mortgagee any moneys he may advance to him for the purpose of carrying on his farm for 1870. This debt or duty is plainly pointed out and specified. And, though the precise amount of the debt does not appear, since it was and, from its nature, must have been indefinite, yet the means o'f finding what it was when due are plain. If this is not a good mortgage under the Code, then all mortgages for indemnity are bad. And we cannot think it was the intent to destroy the right of mortgage in the very class of cases in which they are most useful and proper. If there be anything in law called an estoppel, it would seem that one who makes a mortgage upon land is estopped from denying he had title to the land, or at least such a right to it as authorized him to make the mortgage. It is, in the first place, a deed, and it is a settled rule that one is estopped by his deed even if the donee have not acted on it. Again, in this case it is clear that the mortgagee advanced his money on the faith of this deed, and this would make it a good estoppel in pais. So far, therefore, as the mortgagees are concerned, they are estopped from denying their right to make this mortgage according to its terms, unless, indeed, they set up fraud in the mortgagor, which they do not do. As to the other parties they have no business here. They [138] are dot creditors of the mortgagors and do not, therefore, come in under section 3903 of the Code, or the amendment of 1866, section 3892. And even were they creditors I, for myself, doubt if they would not have to show fraud or intent to defraud them. But these parties come in as claimants to the land. They cannot be heard in this contest. This is a proceeding to make effective upon the rights of the mortgagors in this land a lien they have put upon it. The judgment binds them and those claiming under them, them and their privies, and nobody else. If they have no title, the mortgagee has nothing; if they have title, he gets in this proceeding a judgment authorizing that title and nothing else to be sold. The issue is between the mortgagors and mortgagee, and other claimants to the land have nothing to do with it. The mortgagees have a right to go on, get their judgment, levy on the land and sell it. After the judgment the other parties may, under our claim laws, claim it, or they may stand by their rights as owners in an action of ejectment. None of these parties except the mortgagors have any rights in this proceeding, nor are any of their rights or interests affected by it. Judge Cole was right, therefore, in refusing the continuance, and the judgment is right. Judgment affirmed.