Tufts v. Tapley

Soule, J. It is unnecessary for us to decide the question, which was much discussed at the argument, whether the deed from the plaintiff to Tapley, with the contract between Tapley and the plaintiff, constituted a mortgage, or an absolute conveyance and a contract for a repurchase on conditions which were not fulfilled by the plaintiff. If the sale was absolute, the plaintiff has lost all rights under the contract for a reconveyance, by failing to pay the amount called for by its terms within the time specified. 382 Flagg v. Mann, 14 Pick. 467. 2 White & Tudor Lead. Cas. Eq. (4th Am. ed.) 1995, and cases cited. If the transaction was a mortgage, it has never been foreclosed by any formal proceedings which have been proved, but the plaintiff is not entitled to redeem. The defendants Tarleton and West purchased the land described in the bill, in good faith, from the defendant Tapley, supposing that he had the absolute title and the right to convey it, and without notice, that the plaintiff had any right in the premises. They bought it nearly fifteen years before the filing of the plaintiff’s bill, and have ever since occupied the premises as owners, and have expended in improvements on it ■ a sum nearly or quite equal to the purchase money. Some eight, ten or twelve years ago, the plaintiff expressed to the defendant Tarleton his satisfaction in the fact that Tarleton and West had got the property, so that Tapley would never get any benefit out of it. This statement was inconsistent with the idea that the title of Tapley and of the defendants, his grantees, was that of mort • gagees only, because a mortgagee is not entitled to any benefit from the property mortgaged except as security for his debt. The plaintiff did not at this time assert any claim to or interest in the premises. His conduct was of a nature to confirm Tarleton’s belief that the plaintiff had ceased to have a right to a reconveyance of the property, before the sale by Tapley. Relying on the assurance of Tapley at the time of the sale, and on the impression conveyed by the conversation of the plaintiff, Tarleton and West made large outlays in improving the premises ; and some six or eight years after the conversation already referred to, the plaintiff in a conversation with Tarleton commended the improvements, and expressed surprise that they had not been made before. This is wholly inconsistent with the idea that he regarded the defendants as mere mortgagees, as nothing could be more unwise on the part of mortgagees than >to expend money in making improvements on the mortgaged property, because they would not be entitled to exact compensation therefor, in case of payment of the mortgage debt and extinguishment of the mortgage. If, therefore, we assume that Tapley was a mortgagee only, and could not convey a valid title as against the plaintiff’s right to redeem, the conduct of the plaintiff, who knew of the 383 purchase by the defendants Tarleton and West, in concealing his title from them, and giving them reason to infer that he had no interest in the premises, and to believe that their title was perfect against him, followed by large outlays by the defendants in permanent improvements on the property, estops him to set up his right to redeem the mortgage. Though his right to redeem remains as an existing estate, on paper, a court" of equity will not under such circumstances aid him to redeem the land from the mortgage, to the great injury of the innocent tenants of the premises. He will not be allowed to profit by their mistakes, caused by his misrepresentations and concealment. Fay v. Valentine, 12 Pick. 40. McSorley v. Larissa, 100 Mass. 270. We have discussed this question as if the paper title, under which the plaintiff claims, had been in him all the time since the agreement was made in 1859, because we are satisfied on the evidence that the conveyance by the plaintiff to Wheeler was colorable merely, and that the paper title was held by Wheeler for the benefit of the plaintiff. Decree affirmed, with costs.