Gambril v. Doe ex dem. Rose

Dewey, J. Ejectment on the demise of Rose against Edward Gambril and Traverse Gambril. Plea, not guilty; trial by the Court; and judgment for the plaintiff. The material evidence adduced on the trial was as follows:-1. A deed from Edward Gambril to one Williams for the premises in question, dated January 6th, 1837. ' The deed commences, “l, Edward Gambril, of, &c., do hereby mortgage, assign over, and transfer to George Williams, of, &c., for his use and benefit,” &c. (the land in question), “ to secure the payment of the suip of eighty dollars and twenty-five cents, in twelve months from the date, with ten per cent. interest thereon. And I do agree that said land, and all my right, title, interest, and claim therein, may be exposed to sale, if such principal and interest be not paid at the time the [141] same shall become-due, to satisfy said principal and interest, with five per cent, damages thereon, and all costs.” 2. A quit claim deed from Williams to the lessor of the plaintiff for the premises in question dated in 1842. 3. Admission of possession by the defendants at the commencement of the action. 4. A mortgage from Edward Gambril to Traverse Gambril dated Nov. 13th, 1841. It is contended by the plaintiffs in error, that the mortgage from E. Gambril to Williams contains no words of conveyanee of the legal estate; and that it is void for usury. We do not think that either of these objections can be sustained. No particular form of words is necessary to effect a conveyance of real estate. Any words which denote the intention of the parties to a deed to transfer the title from one to the other are sufficient to make a conveyance. 2 Blacks. Comm. 298. — 4 Kent’s Comm. 460, et seq. — 1 Mass. 219. An assignment is a transfer of real or personal property, and may be of lands in fee-simple. 1 Jac. Diet. 139.— 1 Tomb Diet. 106. We cannot doubt that the parties, by the use of the words “mortgage, assign over, and transfer,” &c.,. designed to convey a. legal estate from E. Gambril to Williams to the land in question, as a security for the debt named in the deed. The estate which passed was a life estate in Williams, his heirs not being mentioned. That estate passed by Williams's quit claim deed to the lessor of the plaintiff. This title was derived from Edward Gambril, one of the defendants, and of course must prevail against him; and it is good also against Traverse Gambril, the other defendant, as it is older than the dped from Edward Gambril, under which he claims title. As to the objection of usury in the mortgage, it is sufficient to answer that, so far as regards the ten per cent., that was the lawful rate of interest when the contract was made; and, so far as regards the five per cent, damages contingent upon the sale of the premises under the power given in the mortgage, it was entirely optional with the mortgagor whether he would pay them or not. They were in the nature of a penalty for the want of punctuality in paying the debt when due. This saves the contract from the taint of usury. Wells v. Girling, 1 B. & B. 447. Besides, the five per cent, seems [142] t0 have been intended as a compensation for the trouble and of selling the mortgaged premises on default of the mortgagor in paying the debt. This, we think, is a reasonaNe stipulation to allow compensation for extra and incidental trouble and expense, and does not, in our opinion, render the contract usurious. Baynes v. Fry, 15 Ves. 120. J. S. Reid, J. Yaryari, and J. 8. Newman, for the plaintiffs. J. Ryman and J. B. Sleith, for the defendant. Per Curiam. The judgment is affirmed with costs.