Springfield Five Cents Savings Bank v. South Congregational Society

Ames, J. The mortgage, as originally signed and delivered tc the plaintiff, not being under seal, could have no effect, either as a conveyance of, or as a power to convey, real estate. The plaintiff, therefore, at the time of the attempted sale, had no title to the real estate, and no power to convey it. The sale was a mere nullity, for want of any authority on the part of the plaintiff to make it; and the bidder was under no legal obligation to [518] accept the instrument tendered him as a conveyance, or to pay the amount of his bid. The reformation of the mortgage, seven months after the attempted sale, by the decree allowing a seal to be affixed, would not have the effect to give validity to a transaction originally void, and thereby to make the sale binding upon the purchaser. It follows that the note has not been paid by the property intended to be pledged for its security, but is still in full force. See Elwell v. Shaw, 16 Mass. 42; Warring v. Williams, 8 Pick. 326; Stewart v. Clark, 13 Met. 79. Judgment for the plaintiff affirmed.