Gilson v. Gilson , 84 Mass. 115 ( 1861 )

Dewey, J.

The demandant may well maintain this action as mortgagee of the demanded premises. The case of Bcmfair v. Lanfair, 18 Pick. 299, is a strong authority to show that such is .the proper effect of the indenture executed by the parties. The indenture expresses on its face that it was given for the faithful fulfilment of an agreement to support and maintain Ebenezer Gilson and his wife Rebecca during their natural lives. In this respect it substantially agrees with the case of Lanfair v. Lanfair. It was said by the court in that case that, “ if the instrument be made as a security for the payment of a debt, or the performance of a duty, it is a mortgage. And the substance, and not the mere form, of the instrument is to be regarded.” The like view is taken, and fully supported by numerous authorities cited in 1 Washburn on Real Prop. 479.

2. Nor can the tenant object to the validity of the deed because it was not duly acknowledged, and consequently it was not duly recorded. The statute declares that no such conveyance “ shall be valid and effectual, against any person other than the grantor and his heirs and devisees, or persons having actual notice thereof, unless it is made by a deed recorded.” Rev. Sts. c. 59, § 28. Gen. Sts. c. 89, § 3. This conveyance was offered to show a title in the demandant, derived from the tenant, and the tenant was the grantor in this deed, and so within the exception. The acknowledgment is only essential as a prerequisite to the recording, and as against the grantor and his heirs, the deed is effectual without it. See Dole v. Thurlow, 12 Met. 157, to the point that a deed not acknowledged is a valid conveyance as against the grantor.

3. The demandant has such interest in the demanded premises as to entitle him to maintain an action therefor in his own name alone, after a breach of the agreement for his support and maintenance recited in said indenture. The Rev. Sts. c. 59, § 11, it is true, have excepted mortgages from the broad provision that all conveyances made to two or more persons shall be construed to create estates in common and not in joint tenancy. But this provision only operates to leave open the inquiry in each particular case, as to the character of the mortgage. If the mortgage is given to secure a joint debt, it will be construed to be a joint estate. But if a mortgage is given to secure separate debts or obligations or duties, each mortgagee is entitled to enforce his rights in his own name. The case of Burnett v. Pratt, 22 Pick. 556, will be found to sustain this position. 1 Washburn on Real Prop. 535, also states the rule in the same way.

Upon recurring to this indenture, it will be found to contain an obligation to support and maintain the demandant during his natural life. This is an obligation in which the demandant is alone legally interested, and which may be enforced as a separate duty to him, the performance of which is secured by the mortgage. This is so, whatever question might arise as to the proper parties to an action, in which the object was to enforce the mortgage solely for the breach of the stipulation to support and maintain his wife. The indenture also declares that the tenant grants and conveys a lien on said real estate for the purposes recited, to “ said Ebenezer Gilson, and my mother, said Rebecca Gilson, each and severally.”

The court are of opinion that none of the objections urged by the tenant are well maintained.

Exceptions sustained.