Everest v. Ferris

By the Court Beery J. Upon the facts found by the referee, it is manifest that the interest of the defendant Ferris in the premises in controversy, was that of mortgagee. The referee finds “that said Ferris, in consideration of two hundred and fifty dollars, paid to him by the defendants Hart Eawson and Harvey EawSon, executed and delivered to them a quifrclaim deed of conveyance, whereby he remised and released, sold, conveyed and quit-claimed to the defendants Eawsons, all his right, title, interest, claim and demand in or to said premises; that Benjamin S, Ferris did not, then or at any other time, transfer to the said Eawsons the said note against Eliza Lockard, although said note was then [30] and is still in Ms possession, nor, at the time of making said transfer to Rawsons, did said Ferris intend to retain said note as a valid or subsisting claim against said Eliza Lockard, but at the time of making said transfer, the said Ferris supposed that he then had absolute title to the premises in question, inasmuch as his title was absolute in form and the said Eliza Lockard had defaulted in the performance of the conditions of the bond given her by said Templeton, and supposed that any personal claim against said Eliza Lockard had merged in the title to said premises, and the said note become of no value; and he also intended to convey, and supposed he was conveying to said Rawsons, an absolute title to said premises, and all the title and interest which he had, either as security or otherwise therein; that at the time of the said conveyance to them from said Ferris, the said defendants Rawsons had no knowledge of the existence of said note, or of the bond from Templeton to Eliza Lockard, nor of the equities of said Eliza Lockard, other than what would bo implied by law from the form of the conveyance, which they accepted from Ferris, or from the fact of the occupancy of the premises by said Eliza Lockard; that they were purchasers in good faith, for a valuable consideration, and supposed they were purchasing an absolute title to the premises in question.” .As conclusions of law, the referee found, “First: that the transfer as above stated by the defendant Benjamin S. Ferris to thé defendants Rawsons, did transfer to and vest in the defendants Rawsons, all the right, title and interest, either as mortgagee or otherwise, which said Ferris had in said premises, and also operated as a transfer of the mortgage debt; whereby .the defendants Rawsons became, and still are possessed of a mortgage interest in said premises, to the extent of the principal and interest due on the note given by Eliza Lockard to Robert J. [31] Templeton, and any taxes wliidh. they may have paid on said premises. Second; that both, by reason' of the occu pancy of the said premises on the 24th day of November, 1858, by said Eliza Lockard, and also from the, character and form of the conveyance which they accepted from Beniamin S. Eerris, the defendants Bawsons, are chargeable with notice of and hold subject to all equities of Eliza Lockard, or her assigns in said premises ; that, therefore, they took and now hold a mortgage interest in said premises, to the amount and interest above stated.” In Hill vs. Edwards, 11 Minn., 22, it was said by this court, that the “mortgagee has no convey able interest in the mortgaged premises until foreclosure sale, or at least until entry after condition broken, and a conveyance of the premises by the mortgagee to a third party, unless at least intended to operate as an assignment of the mortgage and transfer of the mortgage debt, is entirely inoperative, and such intention must be made to appear.” The doctrine thus laid down, was followed and applied in Gale vs. Battin, 12 Minn., 287; Johnson vs. Lewis, 13 Minn. 364; Greve vs. Coffin, 14 Minn., 345. Unless we are prepared to overrule this entire series of decisions, and we see no reason to do so, the referee’s first conclusion of law cannot be sustained upon his findings of fact. Even admitting, what is by no means clear, that the referee has found that the- quit-claim deed from Ferris to •the Bawsons, was intended to operate as an assignment of the mortgage, he has not found as a fact, that it was intended to operate as a transfer of the mortgage debt. Indeed, to our minds, the facts found leave no room for doubt that no transfer of the debt was intended, or thought of by any party to the deed. Without reference to the fact that the premises in contro [32] versy were in the possession of Eliza Lockard at the time when the deed from Ferris to the Eawsons was made, we think that the second conclusion of law is sustained by the fact that said deed was a quit-claim deed, in common form. A deed of that character passes only the estate which the grantor could lawfully convey. Pub. Stat., Ch. 35, Sec. 3; Gen. Stat., Ch. 40, Sec. 4; Martin vs. Brown, 4 Minn., 282; Hope vs. Stone, 10 Minn., 141, and cases cited. As Ferris had only a mortgage interest in the premises, and the Rawsons took by the quit-claim deed only what he could lawfully convey, and as he could lawfully convey nothing, unless his conveyance operated as an assignment of the mortgage and transfer of the mortgage debt, and as it did not so operate, it must follow that they took nothing by it. In this view of the rights of the parties, the referee having found, that subject to the mortgage lien of the Eawsons, the plaintiff is the owner in fee of the premises in question, wo deem it unncessary to consider any other points made upon the briefs of' counsel. Judgment reversed.