Judd v. Flint , 70 Mass. 557 ( 1855 )

Dewey, J.

It seems to us that the present action is to be decided irrespectively of any question as to the conveyance of May 24th 1852, so far as it was designed to secure the debt of Jenkins to Flint of $400, having been made in violation of the insolvent laws forbidding preferences by insolvent debtors. Whatever may have been the character of that conveyance, in that respect, and however successfully the demandant might maintain his superior rights as against that claim, yet he must fail to sustain the present action, because the tenant shows in himself an older and better title, entirely legal in its origin, and unaffected by the subsequent acts of the parties and those claiming under them. The mortgage of June 3d 1850 from Jenkins to Batchelder was a valid mortgage, and was not affected by the insolvency of Jenkins. This mortgage has never been discharged. The giving up the bond of defeasance by Jenkins, the mortgagor, did not defeat the mortgage in the hands of Batch-elder. Jenkins has never paid the money secured by his mortgage to Batchelder; but the same was paid by Flint, as a consideration for a conveyance by Batchelder of the estate to him. The estate passed from Batchelder to Flint therefore legally as to all the interest that Batchelder had therein, which was as security for four hundred dollars. To this extent, Flint has a good title to the premises, and may hold the same. This will be so, although the further attempt to secure the additional amount of Flint’s debt may fail, as made in violation of the insolvent laws. This latter sum may not be secured by the conveyance to Flint. The question of the amount of the lien acquired by Flint, and whether it will include any sum beyond the $400 due to Batchelder, will properly arise on a bill in equity to redeem the estate.

Judgment on the verdict.