Smith v. Prince , 14 Conn. 472 ( 1841 )

Sherman, J.

The first question in this case regards the title which the defendants in error acquired by the mortgage deed from Stetson and Blake, on the 25th of May, 1838. It is contended, that Stetson and Blake had no such title in that part of the property which they received from Remington and Whitman, as would enable them to pledge it for a debt.

The machinery in question was conveyed to Stetson and Blake, on the 12th of May, 1837, and it was, at the same time, stipulated, that they should pay for it the sum of 5000 dollars. Of this sum, 2000 dollars was to be paid on delivery, and the residue in manufacturing cloth for Remington and Whitman, who were to give credit for a specified proportion of the price of manufacture, towards the balance due. If Stetson and Blake performed the contract on their part, the machinery was to be absolutely theirs. If they failed to fulfil, the property was to revert to Remington and Whitman ; who, in that event, were to retain so much of the 2000 dollars advanced, as would indemnify them for the depreciation of the property, and other damages they might sustain, by the non-performance of the contract. This was not an executory agreement to convey the property after the stipulated terms were fulfilled, but vested an immediate title upon its delivery, defeasible by a failure to perform the terms. The right of Stetson and Blake differed little from that of a mortgagor. It was defeasible until the fulfilment of the stipulations, and then to become absolute.

Under these circumstances, while the contract was in force, and Stetson and Blake had an absolute right to perfect their title, they mortgaged the property to Prince and Orms-bee, the defendents in error. Had full payment been made to Remington and Whitman, in the manner prescribed by the agreement, the title of the defendants, as mortgagees, would have been perfected. The mortgage deed contains covenants in regard to the title, which estopped Stetson and Blake, and all claiming under them with notice, from impugning the right of these defendants. It was executed, acknowledged, and recorded, in the manner directed by the statute; and therefore, all persons coming in by subsequent title, were notified of its contents.

While matters were in this condition, on the 3rd day of December, 1838, Remington and Whitman united with Stetson and Blake, in a conveyance of the property, for the consideration of 4500 dollars, to D. C. Remington &[ Co., who undertook to pay Remington and Whitman the balance of 2135 dollars, due to them — for which they gave a mortgage ; and to satisfy all other liens on the property, including the mortgage of Prince and Ormsbee. The creditors of D. C. Remington Co. afterwards attached the property, and on the 19th of September, 1839, sold it on execution, subject to all incumbrances, to Elisha A. Smith. He, therefore, has the ultimate equity of redemption, subject to the mortgage of Prince and Ormsbee, and the debt due Remington and Whitman. Their right to the property is precisely defined, by the mortgage which they have taken. All other incumbrances have been cancelled. The foreclosure and order for sale do not affect their interest. They make no complaint. The only plaintiff in error is Elisha A, Smith, who bought the title of D. C. Remington ⅜- Co., expressly subject to the mortgage of the defendants in error, and is justly bound to redeem it, or surrender the security. As against them he has no title, except what is derived from Stetson and Blake, which is obviously subordinate to theirs.

It is further insisted, by the plaintiff in error, that the court below erred, in allowing the sums paid by Prince and Orms-bee upon their indorsements, on the ground that the renewal-of the paper discharged the lien upon the property. As this is not specified in the assignment of errors, it is not necessary that it be considered by the court. But the same point was presented in the case of Pond v. Clarke & al. (ante, 334.) at the last term of this court in the county of New-Haven, where we held, that the renewal of the paper, while the indorser remained liable, if he was ultimately compelled to pay it, in consequence of his first indorsement, did not affect his lien upon the mortgaged property.

We are of opinion that the judgment of the superior court be affirmed.

In this opinion the other Judges concurred, except Ciiurcii, J., who was absent.

Judgment affirmed.