Creeden v. Mahoney

Braley, J. The plaintiff rests his claim to equitable relief upon the ground that the deed not having been delivered the defendant never became seised of the land, and the principal averments of the bill are, that for his own advantage he caused the deed to be made and recorded to enable the defendant to execute a mortgage of the land, which accordingly was done. If the making, recording, and subsequent retention of the deed by the grantor are acts consistent with his continued ownership, — 405 — it is settled that manual delivery of the instrument is not required to work a transfer, for acts of the grantee showing acceptance, when coupled with a purpose of the grantor to treat the deed as delivered, are sufficient to pass the title. Harrison v. Phillips Academy, 12 Mass. 456, 460. Hedge v. Drew, 12 Pick. 141. Mills v. Gore, 20 Pick. 28, 38. Regan v. Howe, 121 Mass. 424, 426. Snow v. Orleans, 126 Mass. 453, 457. Meigs v. Dexter, 172 Mass. 217. The express object of the conveyance was to invest the defendant with authority to convey the fee in mortgage, and the deed could not be effectual for this purpose and immediately thereafter become inoperative, for if the defendant once acquired title his title was not terminated by the execution of the mortgage. Upon its face, with the knowledge of the plaintiff, the mortgage purported to be the sealed instrument of the defendant, presumably with the usual covenants of warranty, and the acts of the plaintiff in placing the deed upon record, and then asking for the making, execution and delivery of the mortgage were concurrent. The plaintiff’s case then must rest upon one of two theories, either the act of the defendant in mortgaging the property was intended to be purely that of a volunteer without any legal title, or the making and recording of the deed was for the express purpose of enabling him to give a valid mortgage. It is not to be presumed that the plaintiff intended to perpetrate a fraud upon the mortgagee by causing it to appear of record that the defendant was the owner, when in fact the title had not passed, even if under R. L. c. 127, § 5, as between himself and the mortgagee the mortgage would have been valid. Stiff v. Ashton, 155 Mass. 130, 133. The statute is intended to protect an innocent mortgagee who deals with the apparent owner of record, although subsequently it appears that the mortgagor was not actually seised at the time, and its provisions cannot be invoked by a landowner to prevent a change of title which otherwise had been effected at common law. The making of a conveyance in fee to empower the grantee to make another conveyance of a like estate legally includes on the part of the grantor the intention to treat the deed as conveying title, and hence as delivered, and while no person can be made an involuntary grantee and have a conveyance of land thrust upon him, assent may be shown by his conduct, and the subsequent convey — 406 — anee by the defendant was an unequivocal act of acceptance. Regan v. Howe, ubi supra. Gould v. Day, 94 U. S. 405. In Barnes v. Barnes, 161 Mass. 381, relied upon by the plaintiff as a binding authority in his favor, the plaintiff executed and recorded a deed to the defendant, intending at the time to pass the title, but after record received and retained possession of the deed. Some time after he informed the defendant of its existence, and spoke of the land as hers, and so far as possible she assented, but it was held that the conveyance never became operative, as the unexpressed intention of the grantor at the time of record did not constitute a delivery. But the present case goes much farther by showing affirmative acts participated in by both parties, which recognized a transfer of the title, even if a gift was not intended. The instrument having been delivered and accepted, the plaintiff is estopped by his covenants from claiming the legal title, and the demurrer was rightly sustained. Nourse v. Nourse, 116 Mass. 101. Decree affirmed.