Leonard v. Bosworth

Hosmer, Ch. J. I shall limit my opinion to the motion in arrest of judgment, and to this precise question, Whether a mortgage deed, is an alienation of lands within the second section of the act for the prevention of maintenance. Stat. p. 446. (ed. 1808.) By the law referred to, “all bargains, sales, leases, or alienations for years, life, lives, or forever, or for any other term or time whatsoever, of any lands, tenements or hereditaments within this colony, whereof the lessor, vendor, grantor, or the person that doth other ways execute any instrument in writing, for the transferring any right or title to any lands, tenements, or hereditaments to another person or persons, the present possessor thereof only excepted, is disseised, or ousted of the possession thereof, by the entry, possession or improvement of any other person, or persons, shall be null and void.” And by the second section of the law, it is enacted, “That whosoever shall attempt, by any instrument in writing, under his hand, to alienate any of the claims or rights above described, or shall receive any conveyance thereof to him or them, shall forfeit one half of the value of the lands attempted to be [424] alienated as aforesaid.”-Is a mortgage an alienation of land? The cases cited by the defendant show, that it is not; and the point has frequently been decided in this court. In the case of Huntington v. Smith, at Litchfield, June, 1822, it was adjudged, that the fee simple of land mortgaged, remained in the mortgagor; and that the mortgagee, before entry and foreclosure, had, at most, a chose in action, or a right to the possession, in order to render the mortgage available to the payment of his debt. In the view which is now taken of this subject, a mortgage may be considered as a lien, by means of which the mortgagee may obtain possession, and, if his debt is not paid, appropriate the thing pledged in satisfaction; but it is no alienation “for years, life, lives or forever, or for any other term of time whatsoever.” The defendant in this case, is not within the letter or the construction of the statute, by reference to the words of it; and he must be embraced by one of them, to be made liable to a penalty, as a violator of the law. Penal laws must be construed strictly; and although mortgages are within the mischief, at which the statute before mentioned is aimed, they are not within the literal construction of the act. Daggett v. State, ante 60. and other cases at New-Haven, June, 1821. The judgment must be arrested. The other Judges were of the same opinion. Judgment arrested.