Butman v. James

Berry, J. The deed of the land in controversy from the plaintiff to Rogers, and the bond for the reconveyance of the same from Rogers to the plaintiff, were made as part of one transaction, bore the same date, and both were duly recorded before the defendant’s alleged .attachment was levied. Competent testimony amply justifies the trial court in its findings that the deed was given as security merely for a loan of money by Rogers to the plaintiff, and that the transaction evidenced by the two instruments was intended by the parties to be, and in legal effect was, a mortgage. By Gen. St. 1878, c. 40, § 23, “when a deed purports to be an absolute conveyance in terms, but is made, or intended to be made, de-feasible by force of a deed of defeasance, or other instrument for that purpose, the original conveyance shall not be thereby defeated or af [550] fected as against any person other than the maker of the defeasance, or his heirs or devisees, or persons having actual notice thereof, unless the instrument of defeasance is recorded in the registry of deeds of the county where the lands lie.” This section does not require that what it styles the “instrument of defeasance” shall be a formal deed of defeasance, but permits it to be any “other instrument for that purpose” (with, we presume, the qualification that it be in its terms reasonably adapted to subserve that purpose) by which the deed “is made, or intended to be made, defeasible.” Now, a bond, for a reconveyance upon the payment of a specified sum and interest, at a specified time, made at the same time and of the same date as. the deed, is not only an instrument in form and terms reasonably adapted and appropriate to serve as a defeasance, (Bice v. Bice, 4 Pick. 349,) but we venture to assert that it is the instrument which always has been and now is in most common use in this state for that purpose. It is therefore, in our opinion, an instrument of de-feasance within the meaning of section 23, if so intended; and, if duly recorded, it protects the right of defeasance which it is intended to secure, against all persons, without any notice to them except such as the record of the instrument gives. This conclusion is not inconsistent with the doctrine of Buse v. Page, 32 Minn. 111, viz., that “where A. conveys land to B. by absolute deed, and B. at the same time executes to A. a bond or agreement, conditioned to reeonvey the land to A. upon payment of a certain sum of money, at a time specified, the transaction between the parties, upon this simple state of facts, purports to be, and prima facie is, what is called a conditional sale, and not a mortgage.” While the transaction thus spoken of is a conditional sale prima facie, it is such prima facie only, and hence, upon its face, its character as a conditional sale instead of a mortgage is disputable; so that whoever takes-title while it is upon record takes subject to the right of the party claiming under the alleged defeasance to show that, though the transaction is prima facie a eonditonal sale, it is in legal effect a mortgage. The opinion in Buse v. Page proceeds upon this very theory. Page took title without any notice of the alleged defeasance, in that ease, except such as the record furnished; but so far from concluding or [551] resting upon the idea that he therefore took title free from the alleged defeasance, the opinion goes on to examine and consider the facts of the case for the purpose of showing that the transaction was in fact and legal effect what it prima facie purported to be upon the face of the papers, viz., a conditional sale. So that the view taken by this court in Buse v. Page, so far from antagonizing the views above expressed in the case at bar, is exactly in line with them. It follows from what we have said that the fact that the bond does not show upon its face the intention with which it was executed and that it was intended as a defeasance, does not make a case of an unrecorded conveyance within the meaning or influence of section 21 of the same chapter of the statute in which section 23, supra, is found. And as section 21 is the only provision of our statute changing the rule of the common law, it further follows that an attachment or judgment against the person to whom the deed which “purports to be an absolute conveyance is made” becomes a lien on the actual interest only of such person in the land, as such interest existed at the levy of the one or the docketing of the other. Lamberton v. Merchants’ Nat. Bk. Winona, 24 Minn. 281. And in a case like this at bar, where the debtor’s right as respects the land is simply that of a mortgagee, he has no “actual interest” therein subject to levy, and therefore the levy of an attachment or execution against him upon the land in no way lays hold of or affects it. This conclusion disposes of the most important question in the case. The deed from plaintiff to Rogers, when taken in connection with the bond, being a mortgage simply, defendant’s attachment and judgment against Rogers never became a lien upon the land, and therefore defendant’s apparent title is invalid, the title of the land being in the plaintiff. This conclusion renders it unnecessary to inquire whether the trial judge was or was not accurately right in his views as to the matter of constructive notice, or as to its being incumbent upon defendant to show want of notice. The certificate of sale issued to defendant by the sheriff, upon the sale of the land upon defendant’s judgment against Rogers, conferred an appearance of title which was a cloud upon plaintiff’s title because extrinsic evidence was required to show its invalidity. Van Wyck v. [552] Knevals, 106 U. S. 360. To remove the cloud the customary equitable action was properly brought. If there were any issues in the action for a jury, their submission, if desired, should have been specifically demanded, as it was not. Chadbourne v. Zilsdorf, ante, p. 43. The court finds that the land is chiefly valuable for its maple timber, and will be greatly damaged by the cutting down of the same; that defendant has at different times, under a claim of right, entered upon the land and cut down valuable maple trees growing thereon; and that before the commencement of the action he threatened and intended to cut down said timber, and convert it to his own use, from time to time, at his convenience. This is a case of “irreparable injury,” in the equitable sense. The cutting will destroy that which is essential to the principal value of the land, and in such cases an injunction is a proper and usual remedy. Fulton v. Harman, 44 Md. 251; Gause v. Perkins, 3 Jones, Eq. (N. C.) 177; Thatcher v. Humble, 67 Ind. 444. In our opinion the foregoing conclusions dispose of the merits of this case. Many points are made upon the brief of counsel to which we have not deemed it necessary to advert specifically. Many exceptions were taken to the conduct of the trial below, and though most of them must be immaterial in the view which we have taken of the case, yet if any are well taken, upon looking over the whole record, we are clear that there is no error which can have substantially prejudiced the defendant. Order affirmed.