Merrills v. Swift

Storks, J. It is in the first place, contended, by Hewlett, the only defendant who appears in this case, that there was no delivery of the deed in question to the plaintiff, by Swift, previous to the attachment, by Howlett, of the land embraced in it. It is essential to the validity of a deed that it should be delivered by the grantor, and accepted by the grantee,, A deed takes effect only from its delivery ; and there can be no delivery without acceptance, either express or implied. They are necessary simultaneous and correlative acts. Jackson d. Ten Eyck & ux. v. Richards. 6 Cow. 617. As there can be, no delivery without acceptance, a deed cannot be delivered where there is no person to receive it. Jackson d. Eames v. Phipps, 12 Johns. R. 421. And it must be delivered as the deed of the grantor, and not to any other intent. “A deliver’/ of a deed is either actual, — i. e. by doing something and saying nothing — or else verbal. — i. e. by saying something and doing nothing ; or it may be by both. And either of these may make a good delivery and a perfect deed. But by one or both of these means it must be made ; for otherwise, albeit it be never so well sealed and written, yet is the deed of no force. And though the party take it to himself, or happen to get it into his hands, yet it will do him no good, nor him that made it any hurt, until it be delivered.” 1 Touchst. 57. Ow. 95. Telv. 7, 1 Leon, 140. Therefore a delivery of a deed, where actual and not verbal, does not con- \ sist of the mere act of handing or transmitting it either to the < grantee or another person, but of that act and of the intention ; with which it is done ; although the possession of it by the grantee may be evidence of the intent with which he received it. It must be delivered to the use of the grantee. In this case, the court finds, that before said attachment, Swift executed the deed, and delivered it to a third person for the benefit of the plaintiff, and requested him to cause it to be recorded, and handed to the plaintiff, which was accordingly done ; — 262 — although it does not appear that it was received by the plaintiff before the attachment by Howled. It was, therefore, an absolute delivery by the grantor of the instrument, as lus deed, to a third person, for the use of the grantee. These circumstances, according to all the authorities on this subject, constituted a good delivery of the deed to the plaintiff, and immediately vested in him a title to the land conveyed by it. They all agree, that neither the presence of the grantee, nor his previous authority to a third person to receive it on his behalf, nor his subsequent express assent to it, is necessary to make the delivery of a deed valid. Where there is no such previous authority to receive it, his assent is presumed where the deed is beneficial to him, although his dissent may be shown, and the deed thereby rendered ineffectual. Camp v. Camp, 5 Conn. R. 291. Jackson d. Pintard v. Bodle, 20 Johns. R. 184. Hálsey v. Whitney, 4 Mason 20. But here, his express assent is shown, by his subsequent reception and acceptance of it. If the deed had been delivered as an ewrow. a different question would be presented ; but here the delivery was absolute and unconditional. It is said in the Touchstone, vol. I. pp. 57, 58. that “ a delivery of a deed may be made to the party himself to whom it is made, or to any other by sufficient authority from him; or it may be delivered to any stranger,for and in the behalf, and to the use, of him to whom it is made, without authority ; but if it be delivered to a stranger, without any such declaration, intention or intimation, (that is, of the use.) unless it be in case where it is delivered as an escrow, it seems this is is not a sufficient delivery.” In the present case, there is not only no ground to claim it was delivered as an escrow, but it is found to have been absolutely delivered, and for the benefit of the grantee. We find no case on the Subject where the same doctrine is not approbated; and it is expressly sanctioned in many, among which are Belden v. Carter, 4 Day 68. Wheelwright v. Wheelwright, 2 Mass. R. 447. The fact, that no time was limited, in the present case, for the delivery of the deed to the plaintiff, makes it stronger than those which have been cited, in which it was to be delivered over on a future event, viz. the death of the grantor, and where, notwithstanding that circumstance, it was held, that it became the deed of the grantor presently. Hatch, v. Hatch, 9 Mass. R. 307, Haggles v. Lawson, 13 — 263 — Johns, R. 285. Church v. Gilman, 15 Wend. 656. Buffum v. Green, 5 N. Hamp. R. 71. Jackson d. Eames v. Phipps, 12 Johns, R. 418. Doe d. Garnons v. Knight, 5 B. & Cres. 671. (12 E C. L. 351.) Exton v. Scott 6 Sim, 31. In the cases cited by the defendant on this point, either the writing was an escrow, and delivered over before the event happened on which it was to take effect; Sparrow v. Smith, 5 Conn. R. 113. or there was no delivery in fact of the writing, as the deed of the grantor, either to the grantee or to any other person for his use ; arid on these grounds, they were held to be inoperative. 12 Johns. R. 418. 10 Mass. R. 456. Elsie v. Metcalf, 1 Denio 323. Dunton v. Perry, 5 Verm, R. 382., These cases are, therefore, inapplicable to the present. It is claimed, in the next place, that the debts intended to be secured, by the mortgage in question, are not described in it with sufficient certainty to render it operative against Howlett, who is a subsequent incumbrancer. The condition of the deed is, that Swift “shall well and truly pay to the said [tbe-plainnff] on demand, with interest, the sum of 1500 dollars, in which sum [the said Swift] is indebted to said [the plaintiff] on book, and by several notes, the exact date and amount, of which are not recollected, but amounting in the whole, together with the debt on book, to the sum of 1500 dollars, or thereabouts.” The bill, after setting forth the mortgage, and describing particularly the items of indebtedness by book and notes, which the inui tgage was intended to secure, alleges, that when said mortgage was given, neither of said notes nor said book account was present; that neither the precise amount of either, nor the dates of said notes, nor the sums for which the same were given, nor the time when they were payable, was recollected or known ; that a more particular description thereof could not then be given; that the said Swift, being then in embarrassed and failing circumstances, it was necessary that said mortgage should be taken immediately, and before a more perfect or accurate description of said debts could be paid or set forth in said condition ; and that the plaintiff would otherwise have been deprived of all security therefor, and wholly lost said debts. The finding of the court does not pass upon each of these allegations specifically, but it is sufficient to show them to be substantially true; and the indebtedness of Swift to the plaintiff, as — 264 — found, exceeds the sum mentioned in the condition of the 'mortgage. We have, then, before us, a mortgage, executed in good faith, to secure an absolute and honest indebtedness, the character and amount of which is truly described in its condition, and with as much particularity as was practicable, under the circumstances of the case ; where a want of greater precision was not owing to any negligence or fault of either of the parties to the transaction ; and where, moreover, lest the other creditors of the mortgagor might be eluded or left in doubt as to the extent of the Encumbrance created, by an entire want of definiteness or particularity as to its amount, a sum was limited, less than the amount of said indebtedness, beyond which the mortgage could not be available as a security against such creditors. That such a mortgage would, according to the ordinary principles of law, as administered by the courts of law and equity, and independent of our registry laws and the policy to which they have given rise, be sustained against subsequent incumbrancers, there is no doubt. The question, therefore, is, whether it can W so sertaiued; consistently with the maintenance of those laws in their true meaning and spirit. We appreciate the importance of having the title to real estate appear upon record, which is the great object of those laws, and of giving such a construction to them that this salutary object shall be fully accomplished ; and we are not disposed to sanction any relaxation of the strictness of description which has been hitherto required in mortgages of real estate, in relation to the incumbrances created by them ; nor to impugn or weaken, in the least degree, the force of our decisions on that subject. But a majority of the court are of opinion, that the deed in question ought to be supported, not only against the mortgagor, but against subsequent incumbrancers, as a security for the sum mentioned in the condition; and that, in holding it to be valid to that extent, we neither infringe our recording acts, nor the decisions which have been made under them. The general principle established with respect to mortgages, is, that to render them valid against creditors and purchasers, they must give reasonable notice of the incumbrances created by them. Stoughton v. Pasco, 5 Conn. R. 442. But, although this principle is settled, and its justness readily ac — 265 — knowledged, there is no inconsiderable difficulty in the application of it. It is too general in its terms to furnish, of itseif, a test for particular cases. The question thereiure arises in each of them, what is reasonable notice ? And this must necessarily depend <m the nature or character of the incum-brance. Bat, whatever this may be. the record should, as expressed by Ch. J. Williams, in Hart v. Chalker, 14 Conn. R. 79. disclose, with as much certainty as the nature of the case will admit, the real state of the incumbrance. By this is intended, not that a desci iption, ora more certain one, of the incumbrance, is dispensed with, because it happens, from the accidental situation of the parties at the time, not to be in their power to furnish it; but that the character of the debt or liability to be secured is itself to determine what degree of certainty in its description is requisite. Hence, as has been uniformly held, it is necessary that the nature of the debt or liability should be stated in the mortgage; as, for instance, whether the debt is by bond, note or book ; and, also, that its nature should be slated truly ; therefore, a mortgage to secure an absolute now, will not be sustained where such note was given to secure a contingent liability of the mortgagee for the mortgagor; as, for instance, an indorsement by the latter for the former. Sanford v. Wheeler, 13 Conn. R. 165. North v. Belden, Id. 376. In these two particulars, it is admitted, that the deed in question is unexceptionable. But it is claimed, that it is also necessary that the amount of the debt secured should be staled in the mortgage, and, where there are several debts, the amount of each ; and that, in this respect, the description in this deed is insufficient. It may, for the present purpose, be admitted, that where a book debt or promissory note is secured fay mortgage, it is not sufficient to state in it merely that there is an indebtedness from the mortgagor of that kind, without stating further the amount of that indebtedness, although it may admit of a question, whether an error in the statement of the amount, will, under all circumstances, be fatal to the security as against subsequent incumbrancers. Booth v. Barnum, 9 Conn. R. 286. It is unnecessary to examine those points here, because in this case, we think, that there is no room for the objection, either that the amount of the indebtedness intended to be secured is omitted, or untruly stated, in the condition- of the mortgage. It states, that the — 266 — notes and the book debt therein mentioned, amount to the sum of 1500 dollars, or thereabouts ; and it appears from the finding of the court, that the indebtedness of the mortgagor on them, somewhat, although not greatly, exceeded that sum. The description, in this respect, is disadvantageous to him, and not to the mortgagee. The statement of the amount due, is, therefore, strictly true. It has not been claimed, that the addition of the words, “ or thereabouts,” which implies that there is no considerable variation from the sum to which they are annexed, detracts essentially from the definiteness of the statement. In Booth v. Barnurn, 9 Conn. R. 286. where the amount of a book debt was specified, though untruly, with the addition of the same words, it was held, that the security was not thereby impaired. But it is insisted, that the description of the indebtedness should have been more particular ; and that the amount not only of the book debt, but of each of the notes, constituting the aggregate amount of the indebtedness mentioned in the condition, together with the date and other terms of those notes, should have been specified. This appears to us to be, in this case, an objection, rather for want of particularity, than of certainty in the description. Such particularity, or distinct enumeration of facts or circumstances as is necessary in order to disclose the incumbrance with reasonable certainty, is undoubtedly requisite to constitute the notice of it, which ‘was intended to be furnished by our recording acts: but a greater degree of particularity than this would be superfluous. The nature of the indebtedness secured by the deed in question, is clearly disclosed in the condition, and the particularity insisted on by the defendant, would shed no additional light upon it. It is stated to consist of a book debt due from, and promissory notes executed by, the mortgagor, to the mortgagee. The character of the indebtedness would obviously be made no more plain, by an enumeration or description of the items composing the one, or the terms of the other. As to the amount of the indebtedness, it is, as lias been already said, stated truly, although the amount of each particular portion of it is not given. We perceive no substantial reason why this should be required. The object of stating the amount of the indebtedness would seem to indicate what degree of particularity, in this respect, is necessary. That object is, that credi267 lors and purchasers may be enabled to know the extent oí the incumbrance. But is not the extent of it as fully shown, by stating the amount of the whole indebtedness, as bv enumerating its several parts ? And of what importance is it, in this respect, to subsequent inenmbriiuofrs, \⅞ bother it consists oí one note or many ; or what is the amount, uaic. nr other term-, of each ? If they are truly informed, in either of these modes, of the nature and amount of the incumbrance, they have all the knowledge that is necessary to enable them to regulate their conduct with regard to the property; and this constitutes that reasonable notice, which is required, by our recording acts, to be furnished. And we discover no more reason, where several notes are secured by a mortgage, to require that the amount, date, and other terms of each shall be set forth, than that, where a book debt, made up of several distinct items of indebtedness, is secured in the same manner, each of those items and their respective amounts, shall be particularized; a minuteness of statement which has never been deemed necessary. To exact such particularity would be extremely and unnecessarily severe; and would oftentimes be productive of the greatest injustice, by rendering the acquisition of security impracticable. The case now before us, which is not of unusual occurrence, strikingly shows the injustice which such a rule would frequently produce. Indeed, under the operation of it, it would be necessary that those who might have occasion to take security on real estate, should always be at the trouble to have about their persons the evidences of their claims or liabilities, or trust at their peril, for the details of them, to their recollection. By requiring such particularity, the court, in the language of Ch. J. Hosmer, in Stoughton v. Pasco, 5 Conn.R. 450. “instead of effectuating the policy of the recording system, would be instrumental in the perpetration of a hardship most inequitable. The free use and disposal of a person's property, where neither law nor policy forbids, would be inhibited ; the exigencies of business, in promotion of the general convenience, disregarded ; and the impracticable principle, in all cases, that mortgage conditions must contain within themselves, not reasonable certainty only, but certainty to a certain intent in every particular, adopted.” In our opinion, as is also observed by him, “ this would be conformable neither to correct principles, nor to our — 268 — own adjudications. The case of Hart v. Chalker, is not like the present, because there the description pretended to be given of the note, furnished no guide whatever to third persons as to the extent of the incumbrance ; which cannot be said of this mortgage, in which both the nature and amount of the debt are truly stated. It is said, that the description of the debt in this deed, is not sufficiently definite to guard against the substitution of fictitious claims. We are, however, unable to perceive how this would be prevented, by requiring a greater particularity of description. The defendant objects to the note of April 23d, 1827, that it was barred by the statute of limitations when the mortgage in question was executed. It is however found to be unpaid and due ; and it was competent for Swift, the maker, to waive the benefit of that statute, which he clearly did, by giving the mortgage for its security. As to the note of October 5th, 1844, it is found, that it was negotiated, by the plaintiff, and subsequently, at his request, paid with his funds, and taken up, by Swift, as his agent. The effect of this was, tore-instate the plaintiff as the proprietor of the note ; and he might have recovered on it, in the , samematíher as if it had never been negotiated. The objections to these notes are therefore unfounded. The superior court is advised to render a decree for the plaintiff accordingly. Church, Ch. J. concurred in this opinion.