Doton v. Russell

Waite, J. From the facts detailed in the motion, and the documents annexed, it appears, that, on the 8th day of July 1835, Polly Butcher, being the owner of the demanded premises, conveyed them, by deed, to her two daughters, Maria Gifford, wife of Samuel Gifford, and Eliza I). Stanton, wife of Joshua W. Stanton. In September 1837, Stanton and wife mortgaged their interest to Samuel Gifford, by means of a quit-claim deed ; and -in July 1838, by a warranty deed, gave another mortgage of their interest to Gilbert Monson. In the month of September following, Stanton purchased of Maria Gifford her interest in the premises, and he and his wife joined in a mortgage of the premises to-ller, to secure the payment of the purchase money. On the 4th day of March 1841, after all the mortgage deeds, executed by Stanton and wife, had become absolute, and when all the debts remaimid outstanding, the plaintiffs brought an action against Stanton, and attached the demanded premises, as his property. They afterwards obtained judgment in their suit, and caused their execution, in the month of April 1842, to be levied upon the premises. The first enquiry, naturally arising in the case, is, what title the plaintiffs acquired, by the levy of their execution, provided no change had taken place in the titles of the mortgagors and mortgagees, subsequent to the attachment. Stanton then had but an equity of redemption ; the deeds having become absolute, and the legal title vested in the mortgagees. The plaintiffs, under such circumstances, could not have sustained an action at law to recover possession of the property. They took nothing more by the execution than Stanton had in the property, which was but an equitable title. Before they could have sustained their action of ejectment, it would have been necessary for them to get in the legal title, out [153] standing in the mortgagees, either by the aid of a court of chancery, or in some other manner. This principle is well settled in this state. Smith v. Vincent & al. 15 Conn. R. 1. It however further appears, that on the 31st day of March, 1841, after the attachment by the plaintiffs, and before the levy of their execution, Stanton, his wife, Monson, and Maria. Gifford, executed a release deed of the premises to Eliphalet W/álilescy. This was done for the purpose of enabling him to convey the same to the defendant, in pursuance of a contract, previously made with him, by Stanton, his wife, and Whittlesey, for the sale of the premises to the defendant. On the same day, Whittlesey gave the defendant a bond, obligating himself to convey to him the premises. In the condition of that bond, there was a stipulation that possession of the premises should be immediately given to the defendant; and possession was accordingly taken under it. It also appears, that in May, 1838, Samuel Gifford died, and that his wife became the administratrix of his estate. What became of the legal title, which had vested in him, by virtue of the mortgage from Stanton and wife — whether it remained in his heirs at law, or had been released by the administratrix — does not very distinctly appear. There is no evidence showing that it has ever been conveyed to the plaintiffs. So far as the property is covered by that mortgage, the plaintiffs show no legal title. How are their rights affected, by the release deed to Whittlesey ? By that instrument, the legal title of the mortgagees, and the equitable title of the mortgagors, subject to the lien acquired by the attachment, became vested in him. The lien remained unimpaired by that conveyance. Stanton never having had the legal title, either at the time of the attachment, or at any subsequent period, the plaintiff’s could acquire none from him, by virtue of their levy; and it is not pretended, that they ever acquired it in any other manner. It is said, however, that the mortgage debts were paid by Whittlesey, at the time of the conveyance to him. Suppose the moneys paid by Whittlesey, operated as payment of the debts, and not as a purchase ; how would that vary the title of the plaintiffs, so long as there is no conveyance of the legal title, either to Stanton or to the plaintiffs? The payment by Whittlesey can have no greater effect than it would [154] have, bad it been made by Stanton himself. Now, it is well V. . . m this state, that if the mortgagor pays the debt alter the law day has expired, he cannot sustain an action at law against the mortgagee for the possession, nor can any one claiming title under him. He must first get in the legal title. Smith v. Vincent & al. before referred to. The plaintiffs having taken nothing more than Stanton's interest, can place themselves in no better situation than he was. The defendant, by virtue of the deeds from the mortgagees to Whit-tlesey, and the authority given to him by Whittlesey, is entitled to stand in the same situation as the mortgagees. This view of the case, upon the facts as presented to us, disposes of the present action, and renders an examination of the other questions involved unnecessary. The court therefore are of opinion, that a new trial must be granted. In this opinion the other Judges concurred, except Storks, J., who was absent. New trial to be granted.