Sherman v. Galbraith

Field, J. The demandant by his deed acquired a good absolute title as against the tenant, if at the time he received his deed he had no knowledge of the deed to the tenant, and no knowledge of the oral agreement between Francis Buttrick and Rachel Galbraith, and there is nothing in the report tending to show that he had knowledge of either. The jury have found that Francis Buttrick, the demandant’s grantor, when he received his deed, had no knowledge of the deed to the tenant, and therefore his title, whether it be in fee simple absolute, or in mortgage, was good as against the tenant, and he could convey this title to the demandant even if the demandant had knowledge of the deed to the tenant. It is argued that the deed to Francis Buttrick, although, in form, absolute, must be considered in equity as a mortgage, on account of the oral agreement between him and Rachel Galbraith, his grantor. This, as we have said, is immaterial, if the demandant had no knowledge of this agreement when he received his deed from Buttrick; but if he had such knowledge, we are still of opinion that the ruling was right. The argument is, that, by the St. of 1883, e. 223, § 14, the tenant could set up an equitable defence, and that the facts tend to show that the demandant was in equity a mortgagee, and therefore cannot maintain the action unless it is amended to a writ of entry to foreclose a mortgage. One answer to this argument is, that the tenant by his pleadings has set up no such equitable defence. But we think it is not the effect of the St. of 1883, e. 223, § 14, to convert a writ of entry into a bill in equity; that the 443 demandant must still declare according to his legal title; and that, if an equitable defence is admissible at all in a writ of entry, it is only when such a defence, if established, would “ absolutely and unconditionally ” defeat the demandant’s claim for possession under his title. The demandant’s legal title is in fee simple absolute; if, in equity, it is to be considered as a title in mortgage, he is still entitled to the possession. If the tenant has any equitable rights under the oral agreement between Buttrick and Rachel Galbraith, they can only be determined in a suit in equity, to which not only the demandant, but Francis Buttrick and Rachel Galbraith, should be made parties. Judgment on the verdict.