Greene v. Conant

Knowlton, J. The only question in this ease is, whether there was any evidence to warrant a finding that the mortgage to Smith, under whom the tenants claim, was delivered before the attachment in favor of the demandant. [225] It appeared that the mortgage was made in pursuance of a previous agreement between the parties; that it was drawn in Smith’s counting-room by his direction; that by his direction, also, it was taken to the home of the mortgagors in Neponset, and executed and acknowledged before a justice of the peace there; and that it was then given to the justice, who was going to the registry of deeds, to be carried by him to be recorded. There can be little doubt that when the mortgagors delivered it to the magistrate to be taken to the registry, they intended to give it effect immediately, as a completed instrument belonging to the mortgagee. The only question which has been argued is whether there was such an assent by the mortgagee as was necessary to make the delivery effectual. Such assent, being for the benefit of the grantee, will be inferred from slight evidence. Thayer v. Stark, 6 Cush. 11. Jordan v. Farnsworth, 15 Gray, 517. Cowell v. Daggett, 97 Mass. 434. Amidon v. Benjamin, 128 Mass. 534. Although Smith was not present at the time of the execution of the mortgage, it appears that he was actively participating in the proceedings. He ¡jad demanded the mortgage to secure him for a loan of trust funds made long before on the promise of it. He directed the drawing of it in his own counting-room. In the execution and acknowledgment of it before a justice of the peace at Neponset, the mortgagors were acting by his direction. The natural inference is, that they expected the justice to receive it and carry it to the registry as the agent of the mortgagee, and that he did so receive it. Since they were not merely acting for themselves in the execution of the instrument, but were making it at that time upon the mortgagee’s demand, and were proceeding under his direction as to the manner in which the business was to be done, the court might properly infer, in the absence of any objection afterwards, that he impliedly authorized their selection of the justice of the peace to receive the conveyance and carry it to the registry of deeds for him, and consented that the delivery should be made in that way. We are of opinion that there was sufficient evidence to warrant the finding of the court. Exceptions overruled.