Merritt v. Harris

Gray, J. The deed from the tenant to the Ladies’ Collegiate Institute and the mortgage back from them to him, executed simultaneously and as parts of one transaction, must, as between the parties to them, be construed together, and in such a manner as to give full effect to both. Cloyes v. Sweetser, 4 Cush. 403. Pomeroy v. Latting, 15 Gray, 435. Under them, the tenant had two distinct interests in the estate; the one the right of entry upon any future breach of the condition in the deed; and the other the mortgage title as security for his debt. The deed being referred to in the mortgage, any one subsequently acquiring the mortgage title took with notice of the pro> visions of the deed. Pike v. Goodnow, 12 Allen, 474. The whole case therefore turns upon the construction of the assignment from the tenant to the demandant. And we are all of opinion that the intention of both parties to the assignment, as manifested by the terms in which it is expressed, was to convey the tenant’s mortgage title only. The leading words “ sell, assign, transfer, set over and convey,” “ said mortgage deed, the rea estate thereby conveyed, and the promissory note, debt and claim thereby secured,” accord with the usual form of assigning such a title, specifying separately the mortgagee’s interests in the deed itself, in real estate, and in personal property or choses in action, and passing the instrument of mortgage, the interest in land which has thereby vested in the mortgagee, and [328] the personal debt which that interest was created to secure, and nothing more. “ The real estate thereby conveyed ” was not an absolute title in fee, but a title in mortgage, and, in this case, a title subject to be defeated by the mortgagors’ breach of the condition subsequent in the deed to them. The words of grant in the assignment cannot operate by way of covenant or estoppel beyond the description of the thing granted and assigned. Blanchard v. Brooks, 12 Pick. 66, 67. Miller v. Ewing, 6 Cush. 34. Hoxie v. Finney, 16 Gray, 332. Van Rensselaer v. Kearney, 11 How. 325, 326. The assignment contains no express covenants on the part of the assignor, against the acts either of himself or of others. The only covenants in it are covenants of the mortgagors with him; it does not enlarge those covenants, or make him an indorser or warrantor of their performance, or liable for their breach, even if his entry for breach of condition in his original deed could be held to be a breach of his mortgagors’ covenants with him. The assignment of a mere mortgage title cannot have the effect of an absolute alienation in fee, to convey or extinguish the right of entry for breach of that condition. Hancock v. Carlton, 6 Gray, 39. Richardson v. Cambridge, 2 Allen, 118. Rice v. Boston & Worcester Railroad Co. 12 Allen, 141. Assuming therefore, without deciding, that the further words in the assignment of the mortgage, “ subject nevertheless to the conditions therein contained,” would not of themselves include the conditions in the deed executed simultaneously with the mortgage and referred to in it as describing the land, the demandant shows nothing in the terms or legal effect of the assignment of the mortgage, to restrain or estop the tenant from enforcing his right of entry for breach of condition in that deed and, according to the terms of the report, the Case must stand for trial.