Anttila v. A. E. Lyon Co.

Pierce, J. The plaintiff’s right depends upon the question whether the husband of the plaintiff’s mortgagor was estopped to assert a title paramount to the mortgage title by reason of the clause: “and for the consideration aforesaid, I, Elias Jasberg, husband of the said Amanda Jasberg, do hereby release unto the said grantee and his heirs and assigns all right of or to both curtesy and homestead in the granted premises, and all rights, by statute and all other rights therein.” This redundant clause probably was drawn by the scrivener out of abundant caution to cover any [128] interest initiate or inchoate arising out of or dependent upon the construction to be given to R. L. c. 132, § 1, and to R. L. c. 140, § 3. See Downey v. King, 201 Mass. 59. Manifestly it was intended to operate as a release, not as a grant of a limited interest in the land mortgaged. It contains no apt words of assignment, nor can the words “all other rights therein,” when read in connection with their context, be construed to disclose an unsuccessful attempt to grant or to release any title to the land and with it the equitable right to receive any surplus remaining after sale in the hands of a mortgagee holding under a paramount title. The words were not of the efficient and operative parts of the deed, nor was the husband described as a grantor therein. The clause held the place commonly assigned to the release of homestead, curtesy and dower. There is nothing in the facts to indicate that the plaintiff was induced to lend money upon the mortgage because of any statement or declaration of the husband as to his purpose in joining in the conveyance or because of the meaning of the words used in this clause. There is therefore no room for the claim that he is es-topped to assert such title as he had and which he has not formally or equitably surrendered. The case in principle cannot be distinguished from Bruce v. Wood, 1 Met. 542, and is distinguishable from Allendorff v. Gaugengigl, 146 Mass. 542, where the court decided only that the words of grant did not convey an estate in fee. The ruling of the presiding judge “That there was an assignment to the plaintiff of all the money in the hands of the defendant remaining after the satisfaction of the defendant’s mortgage by the foreclosure sale and that there should be judgment for the plaintiff,” was error, and the exception thereto must be sustained. iSo ordered.