Bulkley v. Chapman

Hosmer, Ch. J. The great question in the case, is, whether the notes of Chapman were assigned to the plaintiff. By a recurrence to the words of the assignment, the subject matter and the situation of the parties, their intention will be ascertained ; and where this is found, their agreement appears of course. Sumner, admr. v. Williams, 8 Mass. Rep. 214. Fowle v. Bigelow, 10 Mass. Rep. 370. Hopkins v. Young, II Mass. Rep. 302. Brewer v. Knapp & al. 1 Pick. 332. It is a law maxim, Verba intentioni debent inscrvirc. If the ordinary meaning of words render a contract frivolous or ineffective, a deviation from the received sense is admitted, to prevent such absurdity. It is a settled rule, that Verba ali-quid operari debent et cam effectu sunt accipienda. Plowden 156. And so far is this principle carried, that if a deed is inoperative in one way, it shall operate in the way it can, rather than that the intention of the parties shall be frustrated, by the inefficiency of the contract. Hence a deed made to one purpose, may enure to another; if intended for a release, it maybe construed as a grant of the reversion ; or as a covenant to stand seised ; or in any manner in which it can legally operate. Shep. Touch. 82. 2 Wilson 75. If the words, said Lord Mansfield, in Goodtile v. Bailey, Cowp. 597. 600. cannot operate in one form, they shall operate in that, which by law will effectuate the intention. And on this principle it has been adjudged, that the grant of a remainder will pass a reversion, et e converso, if such appears to be the intention. Hob. 27. The application of these principles to the case before the Court, is extremely obvious. What the intention was, it is impossible to question. As the surety of Deming, Bulkley’s property was attached, and immediate application was made, by him, to his principal, for indemnity. Deming, therefore, as [17] signed to him the mortgage of Chapman^ and delivered to him the mortgage deed ; and that he would, likewise, have delivered the notes, had they been in his possession, is but a reasonable presumption. If nothing more was intended, than a transfer of the deed, the transaction was frivolous and absurd, being without any useful legal operation. An assignment of the deed conveyed no beneficial interest. The land comprised in it was only an incident to the debt, and could not be dissevered from it, and convey any title. This has been repeatedly decided. Lawrence v. Knap & al. 1 Root 248. Crosby v. Brownson, 2 Day, 430. Austin v. Burbank, 2 Day, 474. Huntington v. Smith, 4 Conn. Rep. 237. Green v. Hart, I Johns. Rep. 580. Jackson d. Norton & al. v. Willard, 4 Johns. Rep. 41. If the letter of the assignment is adhered to, the object of the parties is entirely frustrated, and the words, so far from being in subserviency to the intention, or operating any indemnity, are utterly nugatory and inefficient. It, therefore, is no strained interpretation, to hold, that by the as-of “ the mortgaged property,” it was intended to assign the notes, without which the transfer was unavailable. But by giving this construction, the words are rendered subservient to the just intention of the parties ; the transaction has efficiency and operation ; and the plaintiff acquires what he sought after, and what Doming purposed to give, to wit, indemnity for his demands. The notes, then, were assigned to the plaintiff, as well as the deed ; and the defendants, by possessing themselves of them without any right, have done the plaintiff an injury. The notes ought to be restored ; and as far as this cannot be done, an equivalent ought to be decreed. * As a necessary consequence of this principle, the superior court is advised, that the bill of the plaintiff be granted that the defendant Hendee be decreed to pay the money collected of Chapman to the plaintiff; that he deliver over to the plaintiff the execution uncollected, and the note in suit ; that a decree of foreclosure pass against Hendee, unless he pay the residue found by the commissioners, and also the difference between the 180 dollars and 365 dollars; that there be an injunction against the plaintiff’s receiving the dividends on Deming’s estate; and that upon the failure of Hendee to pay, by the time limited, Chapman be ordered to pay, &c. or be foreclosed. [18] Daggett and Bissele, Js., were of the same opinion. Petebs and Williams, Js., gave no opinion, being intercM ed in the fund out of which the plaintiff sought relief. Decree for the plaintiff.