Mallory v. Hitchcock

Hinman, J. This is a bill, the object of which is to cause the defendant to be enjoined from prosecuting an action of disseisin, to recover possession, as tenant in common with the plaintiff, of eighty-five acres of land. Whatever of difficulty there is in the case seems to arise principally from the compli [134] caiic a of the numerous facts in respect to the title, and to vanish op such ?y .ement of them as to be easily understood, which can be' ' accomplished without a very particular reference to a: me various documents referred to and recited in the record. In 1829 David Geer and his wife Cynthia owned the whole eighty-five acres as tenants in common, and mortgaged them to the First Ecclesiastical Society in Kent, to secure a note for four hundred dollars. Such proceedings have since taken place, by deeds, the levy of an execution, and orders and decrees of probate, that the husband’s title to the property, both that which he had in his own right, as well as his interest as tenant by the curtesy in his wife’s moiety, has now become vested in the plaintiff; and as, on the face of the proceedings, the whole title to the eighty-five acres would have passed had the whole been in the husband, the question is whether they, in connexion with the length of time that has elapsed, and the possession that has accompanied them, have divested the defendant, and those under whom he claims, of their interest in the moiety originally belonging to Mrs. Geer. To determine this it is necessary to state the conveyances in respect to her title, and in connection with them to allude to some of the transactions through which the plaintiff derives his title. The mortgage to the Ecclesiastical Society was assigned in January, 1834, to John R. Fuller, and Geer and his wife then joined in a quitclaim deed of the premises to him; so that Fuller then became vested with Mrs. Geer’s equity of redemption, and with the society’s mortgage, and with nothing more, as Geer’s intei’est had previously been taken from him by the proceedings under which the plaintiff claims title. In 1835 Fuller foreclosed the society mortgage, but, before the decree took effect, Clark Beardsley, who held the interest previously owned by David Geer, including his interest as tenant by the curtesy, redeemed, by paying up the mortgage under the decree. Cynthia Geer died in December, 1854, and her husband in April, 1857. The defendant now has the title derived from the deed of Cynthia Geer and her husband in January, 1834. Clark Beardsley’s interest in the land was, after his decease, [135] sold by Ms administratrix to tbe granto? of "be present -¿in-tiff; but the superior court finds that the -’:bfc sectoed by the mortgage to the society was not intends1 to !x. *wl was not in fact, sold, but simply his interest in the. land. This fact shows that the petitioner has no interest derived from Clark Beardsley in consequence of his redemption of the society mortgage. He, Beardsley, redeemed that mortgage in order to preserve his interest in the husband’s estate for life in the wife’s moiety, as well as his interest in Geer’s own moiety. If that gave him the right to foreclose Fuller as the assignee of Mrs. Geer’s equity of redemption, it was a right which he never exercised, and which it would seem it is now too late to exercise, if the finding of the court is correct, that it has been paid by the reception of the rents and profits of the estate since it has been m the possession of the plamtiff and those under whom he claims. But, however this may be, if, as is expressly found by the court, the present plaintiff did not purchase any interest m that mortgage, we do not see what right he has to call upon the court for relief in respect to it. It was said, however, and much stress was laid upon the claims, first, that the equity of redemption purchased of Mrs. Geer by Fuller, became merged M the legal estate, which he also purchased of the society, and which subsequently became Beardsley’s upon his paying the mortgage under the decree of foreclosure ; and secondly, that the equity was barred by the statute of limitations, on the ground that the possession of Beardsley and those who claim under Mm was adverse. We think that neither of these claims can be sustained. Fuller had an interest m keeping the legal and equitable estates distinct, and, where this is the case, there will be no merger. Besides, Beardsley is not the assignee of Fuller; he merely paid to him, as the holder of it, the society mortgage; and by such payment he could acquire no rights except such as Fuller could claim as assignee of that mortgage, not such as he acquired by reason of his deed from Mrs. Geer. It was at first the husband’s debt, though the wife’s property was in part pledged for it. Beardsley had become the owner of all the husband’s property which had been mortgaged with his [136] wife and as such holder, as well as the holder of the husbaiid ,. lie estate in her moiety, he paid the debt, and we think under the circumstances it was extinguished by that payment. If he ever had any right to insist upon a payment of a portion of it by Fuller as assignee of the wife, he made no claim for it at the time, but chose to pay it as any other holder of property mortgaged pays to the holder of such mortgage. The plaintiff has no claim arising from adverse possession. The husband as tenant by the curtesy could of course hold the land till his death. The plaintiff and those under whom he claims did hold it under this title till the death of Geer in 1857, when, if ever, the adverse possession must have commenced. It was said again that Fuller’s deed was void because he and Hitchcock were out of possession when it was given. But it was merely a quitclaim deed of an interest not then denied but admitted. Beardsley, or others under him, were at the time rightfully in possession, and claiming only a right to possess as owners of the husband’s life estate; and this was admitted. It was not therefore a deed of anything of which any body had been ousted, but amounted merely to an assignment of her right, which carried with it only a right to the possession on the death of Geer, the husband. We have not therefore discovered any error in the judgment of the superior court, and it must therefore be affirmed. In this opinion the other judges concurred; except Sanford, J., who, having been consulted in the matter when at the bar, did not sit. Judgment affirmed.