Bramhall v. Flood ( 1874 )

Park, J.

It was held, as long ago as the case of Pettibone v. Griswold, 4 Conn. R., 158, that under our recording system the condition of a mortgage deed must give reasonable notice of the incumbrance on the land mortgaged, in order to affect the creditors of the mortgagor, who have no notice of the real incumbrance. The court say, page 162: “ A creditor is not obliged by law to make inquiry in pais concerning the liens on the property of his debtor; but on application to the record he may acquire all the information which his interest demands. At least he must have the power of knowing from this source the subject matter of the mortgage, that his investigation may be guided by something which will terminate in a certain result. And what is not of less importance, the incumbrance on the property must be so defined as to prevent the substitution of every thing which a fraudulent grantor may devise to shield himself from the demands of his creditors.”

This case is the leading one in this state regarding the requisite certainty in the description of a mortgage debt. It has been followed by the cases of Shepard v. Shepard, 6 Conn. R., 37, Stoughton v. Pasco, 5 id., 442, Hubbard v. Savage, 8 id., 215, Booth v. Barnum, 9 id., 286, Sanford v. Wheeler, 13 id., 165, North v. Belden, id., 376, Hart v. Chalker, 14 id., 77, and many others which it is unnecessary to mention. In Sanford v. Wheeler the court use this language: “ The infirmity in this mortgage is not that the true amount of the debt is not set forth, but that a claim altogether different in its nature, character and amount from the one referred to in the condition of the mortgage deed is attempted to be substituted for the debt described; the claim of a surety and not of a creditor. And however equitable as between the parties to the mortgage it may be that it should stand as security not only for the debt really due, but as an indemnity also for the liabilities of the mortgagee, yet as against third persons interested it can no more be made to do this than a mortgage given to secure a bond debt of a specified description can be made to remain, as security for the payment of a book debt.” The debt described in the mortgage deed in that case was an unconditional note of a certain amount, which was made up in part by a debt due from the mortgagor to the mortgagee and in part by liabilities assumed as surety by the mortgagee to the creditors of the mortgagor on their claims against him, which claims were still outstanding against the mortgagor and mortgagee. In Hart v. Chalker the defect consisted in omitting to mention in the mortgage the amount of the note attempted to be secured, which was otherwise fully described; yet the court held that the mortgage deed was fatally defective as against a subsequent incumbrancer. The court say: “ It is far better that one honest creditor should have his security postponed to another perhaps equally honest, who has apparently a’subsequent title, rather than, that the valu* able provisions of our statute relative • to the recording of deeds should be nullified or its vitality impaired.” The case of North v. Belden is an important one upon the subject of mortgage securities, and is exceedingly strong against the claim of the present defendant.

These cases fully show that the mortgage deed, in the case under consideration, is fatally defective as against the plaintiff. The indebtedness described in the mortgage is that of a note for the sum of one thousand dollars, when no such note .existed between the parties, nor is it pretended that such a note was ever agreed to be given. There was an indebtedness between the parties growing out of a certain note at two months, and a certain book account, amounting in the aggregate to the sum of $756.07 ; but to substitute this indebtedness for the one described in the mortgage, would bring upon creditors all the mischief so forcibly described in the case of Hart v. Ohalker, and to prevent which our statute, and the decisions in the cases cited, were made.

But it is said that the case of French v. Burns, 35 Conn. R., 359, modifies the law of the cases referred to; but we fail to see any ground for this claim. The principle of that case is that an absolute conveyance under certain circumstances will be treated as a mortgage, so far as the parties to the conveyance, and subsequent purchasers with full knowledge of all the facts, are concerned. The principle of that case has no application to the question under consideration.

But it is said that subsequently to the attachment of the ■property by the plaintiff the mortgagee brought a petition to correct the error we have considered, and it was afterwards corrected, and'the correction takes relation back to the commencement of the petition to foreclose the equity of redemption, which was previous to the attachment of the property by the plaintiff. We see nothing in this claim. The mortgage was fatally defective, so far as the plaintiff was concerned, at the time the attachment was made, and no subsequent proceedings could cure the defect. He had a lien on the property by the attachment, to secure his claim. His position was similar to what it would have been if he had taken a mortgage of the property at that time to secure the same debt. If he had done this his case would have been similar to that of Hart v. Chalker.

And we see nothing in the claim that at the time the present suit was brought the defendant was in possession of the property under the mortgagee, who had previously obtained possession by virtue of an execution issued upon a judgment obtained by him in a suit of ejectment based upon his mortgage deed. What we have said in reply to the last claim of the defendant is a full answer to this claim. The suit was based upon the mortgage deed. If the deed was defective so far as the plaintiff was concerned, then the suit and judgment growing out of it must fall to the ground. They cannot be set up as a defence against the plaintiff, because they cannot, as against him, make a better title in the mortgagee than he had before. The plaintiff had the best title to the property when he levied his execution, which took relation back to the attachment of the property.

We advise judgment for the plaintiff.

In this opinion the other judges concurred.