Hutchins v. Carleton

Woods, J. The plaintiff derives his title to the land in controversy from a levy of an execution in his favor against James Grover, who had previously been in possession under a deed from Bellows and Carlisle. But before the commencement of the action which resulted in that execution, Grover had parted with his title, so that the levy was of no avail, except to define and characterize the possession taken under it by the plaintiff in 1843. The repeated acts of ownership, performed by his direction and authority, during that year, to wit, the possession given on the 25th of May, Grover’s entry in the autumn, by the direction of the plaintiff’s attorney, and the entry by Thomas Montgomery after511 wards, by a like authority, together with the payment of the taxes, as these several doings are described in the case, and all under a claim of the title conferred by the levy, undoubtedly, avail to give him that possession of the land included in the extent, which enabled him to maintain an action of trespass against any party invading its limits, and not having a better title or an older possession. To prove such older possession, the defendant produced the deed of Bellows and Carlisle to Grover, of April 30, 1836, under which Grover soon after entered and claimed the lot. Grover transmitted his possession and title, which appears upon the case to have been good, by his deed of September 20, 1837, to Greenwood, who, on the 27th of June, 1842, made a deed of it to McKean and the defendant, and McKean’s claim passed to the defendant, April 8, 1843. If this were all, the case would be a very plain one, for the title of Grover would appear by the papers to have passed to this defendant before any possession had been acquired by the plaintiff. But it appears that Greenwood, by his deed of September 1, 1837, with full covenants of warranty and by force thereof, operating by way of estoppel upon the after-acquired estate, mortgaged the same to Truman Stevens, and on the 16th of October following, made his absolute deed, with full covenants to the same Stevens, of the same land, in the mean time, conveyed from Grover to himself. A question here arises and is discussed by counsel, whether the plaintiff, who does not claim under either of these deeds to Stevens, may avail himself of them to show that, at the time that Greenwood undertook to convey to the defendant and McKean, he had parted with his title, so that the defendant took nothing by the deed which he puts in. The rule on this subject, as laid down in this State and elsewhere is, that where a party has shown a seizin in himself, his adversary cannot avoid the effect of it by showing [512] a title in a third person. It is also held that a deed from one actually seized is such evidence of seizin as to justify the application of the rule. Enfield v. Permit, 8 N. H. Rep. 512; Bailey v. March, 3 N. H. Rep. 274. But where the evidence tends to show that the party was never seized, it is admissible. Jackson on Real Actions 157; Bailey v. March, 2 N. H. Rep. 522; King v. Barnes, 18 Pick. 24. In this ease, the party claimed as heir, and proof was admitted, in derogation of his title, that the ancestor had conveyed to another. The present case, perhaps, might admit of a similar application of the rule, and the plaintiff might insist upon any legal evidence that, prior to the deed of Greenwood to the defendant and McKean, Greenwood had parted with his title, and had nothing to convey. But the case does not render it necessary to decide such a question, as will appear when we consider the effects of these two deeds of Greenwood, and the subsequent conveyances. And it is plain that the first, being a mere mortgage, was of no avail to defeat his seizin, for, in legal contemplation, he remained the owner of the land as against all persons but the mortgagee, and might well have transmitted to the defendant a good title for all purposes of this defence. But this mortgage was followed, soon after, on the 16th of October, by the absolute deed, divesting him of all property whatever in the land, and entirely defeating the force of the subsequent deed to the defendant and McKean. Carleton and McKean, therefore, took nothing by the deed of Greenwood. These two conveyances, to wit, the mortgage of September 1, and the absolute deed of October 16, 1837, were made to Truman Stevens, in trust for Bellows, Redington & Co., who, in the further execution of that trust, made and executed an instrument upon the back of the mortgage, with the formalities necessary to pass real estate, whereby, lor consideration expressed, he “ assigns and makes over ” to [513] Nehemiah Giles “ the within-described mortgaged premises, to have and to hold the same in as full and ample a manner as I might have and hold the same, had not this assignment been made.” At the same time, the notes secured by the mortgage were duly and legally indorsed and assigned to the same party. * A question has been made as to what passed by this assignment, as it has been termed, and as it seems probable the parties to it supposed it to be, which raises another question as to the effect of Greenwood’s-deed to Stevens of the 16th of October. The effect of this deed was to convey to Stevens all the estate and interest which Greenwood had, or might afterwards acquire, resembling, in this respect, a grant, and working an estoppel by the covenants it contained. This estate or interest was a mere equity of redemption, and there seems no practical object in inquiring whether this equity was conveyed or released to Stevens; for as he was at the time the holder of the mortgage, he became by force of the deed, the absolute owner of the estate, in contemplation of law, the two interests having been merged, the one in the other, so as to form an absolute estate in fee simple. Greenough v. Rolfe, 4 N. H. Rep. 342; Eaton v. George, 2 N. H. Rep. 300; Harrison v. Phillips Academy, 12 Mass. 481. Although this effect of the union of these two interests in one person is perfectly established at law, cases have arisen in courts of equity, in which it has been necessary, for purposes of justice, and to carry out the just intention of parties, to keep them separate, and the refined doctrines of those courts have, to a certain extent, been adopted at law, where the exigences of the cases have required it, as an alternative to sending the parties to those courts for relief. It has accordingly been settled that as between parties standing in a relation to each other to render the application of the rule proper, the question of merger, in such cases, is a question of intention, on the part of the person on whom the two [514] estates fall, or a question of duty towards those to whom he might stand in a fiduciary relation. James v. Morey, 2 Cow. 246; Gardner v. Astor, 3 J. C. Rep. 55. In the present case, if the assignment of Stevens to Giles could be taken to have conveyed, in terms, no more than a mortgagee’s interest in the land, Stevens might as against Giles, seeking a remedy by his mortgage, well be precluded from insisting upon a merger, and the consequent invalidity of his assignment. Especially as he was a mere trustee for Bellows, Redington & Co., having no interest in the land, but bound by his office to hold it in subserviency to the just purposes of that party and their assigns. And he could not, it would seem, set up his legal title as against Giles, seeking to take possession under the mortgage so attempted to be assigned. As against Stevens, and all claiming under him, chargeable with notice of the facts, by public registry or otherwise, according to law, Giles could, as assignee of the mortgage, maintain his writ of entry, or in any other proper manner, gain and keep possession of the land. Having gained, he might transmit his possession to another, who might hold it against all but those standing in the place of mortgagers, and even as against them until redeemed. The case shows that Giles, in the fore part of January, 1845, and, prior to his deed to the defendant, went upon the lot in question, claiming it. No doubt, then, exists that, being at the time assignee of the mortgage, and clothed with the possession, his deed of the land passed to the defendant a rightful possession, constituting a good answer to the plaintiff’s action. But it is not, perhaps, necessary to insist on the equitable doctrine which would have kept alive and distinct from the estate of the mortgager, the interest or estate of the mortgagee while the two co-existed in the person of Stevens. Eor there seems to be no objection to regarding the instrument of January, 28, 1838, indorsed upon the mortage, and executed with the formalities necessary for passing real es [515] tate, as having actually conveyed from Stevens to Giles the fee simple, which, in contemplation of law, was perfected, in him by the two deeds of Greenwood, or at least a freehold, if the terms of the habendum be deemed insufficient to enlarge the words of the grant to a greater extent. As to the words necessary to be used in a deed under our statute, a great latitute, at least a great liberality has been allowed, in the numerous decisions which are to be found, and of which many have been cited in argument. Upon the strength and authority of these decisions, it may well be said, as is said in regard to deeds of bargain and sale, “ nothing can be more liberal than the rules of law as to the words requisite to create them.” “ Assign and make over ” are as effectual when a good consideration is expressed, as “ quit my claim,” or many other forms that have been sanctioned as sufficient to raise a use or pass an estate. “ Assign ” is, in the opinion of Chancellor Kent, tantamount to “ grant,” and effectual for all the purposes of the deed of grant established by the statute of the State of New York. 4 Kent’s Com. 491, 492, in notis. The conclusion, therefore, is, that an estate of freehold, at least, passed by the several mesne conveyances from Grover to this defendant, and that, according to the case, the verdict must be set aside and there must be Judgment for the defendant.