Aldridge v. Weems , 2 G. & J. 36 ( 1829 )

Martin, J.

delivered the opinion of the court.

The bill charges that Tongue and McPherson were indebted to Aldridge and Higdon, in a large sum of money, and that Tongue, who was the active partner, had repeatedly promised to secure the payment of the same. That Weems was indebted to Tongue, and gave him a deed of mortgage on the 14th day of December, 1821, to secure the payment of the debt in four years after the date of the. mortgage. That before the expiration of the time allowed. Weems for payment, Tongue proposed, and the complainants agreed, to accept an assignment of this mortgage, as security to them in part payment of their debt, and accordingly the following assignment was made by Tongue on the mortgage: “ For value received, I hereby transfer,, assign, and make over to Messrs. Aldridge and Higdon, of Baltimore, this mortgage, and the debt so intended to be secured thereby: witness my hand and seal, this eleventh day of January, eighteen hundred and twenty-five.” That Tongue,, in a short time after this assignment, died intestate, and letters of administration were granted to Hall, &c. The answer of Hall admits the partnership of Tongue and McPherson; that the mortgage, as set out in the bill, was executed by Weems, and that the endorsement on the mortgage, purporting to be an assignment, is in the hand-writing of Tongue. That the mortgage was found among Tongue’s papers at his death. He further admits that Tongue might have promised to secure the debt due to the complainants, and that the endorsement may have been written on said mortgage, with a view of complying with such promise, hut he denies that there ever -was a delivery in fact of the said mortgage by Tongue, or an acceptance thereof by the said complainants. It is also stated in the answer, that Tongue died in January, 1886. The only question put in issue by this bill and answer, is, whether it was necessary to give legal effect to this assignment, that there should be a delivery of the mortgage by Tongue to the complainants.

In examining this case, it is necessary to keep constantly in view, that this is not a mortgage or deed that requires delivery to give it legal effect, but an assignment of Tongue’s interest in the mortgage, that may be good and operative without actual delivery, if there is evidence to shew the party intended it, to transfer his interest in the thing assigned. This doctrine is admitted by the Chancellor in his decree, and that a Court of Equity has the power, and will make every possible effort, within the range allowed by the statute of frauds, to heal the infirmities of defective contracts of every description, that can be sanctioned by the law. This assignment has all the forms and solemnities necessary to constitute a good contract. It is in the hand-writing of Tongue, and signed by him, and is a full expression of his intention to transfer his intere.st in the mortgage, to Aldridge and Higdon. This not only appears on the face of the assignment itself, but is admitted by the answer of Hall, the administrator of Tongue.

In his answer, responsive to the bill, he admits the assignment is in the hand-writing of Tongue, and was found among his papers at his death. That the said Tongue might have promised to secure the debt due to Aldridge and Higdon, and that the endorsement may have been written on the said mortgage by the said Tongue, with a view of complying with such promise.

It was the moral duty of Tongue to secure the debt due to Aldridge and Higdon. It was his express agreement to do so. He has made a solemn instrument in his own handwriting, and signed by him to produce that effect, and this instrument remains in his possession, uncancelled, until the day of his death; yet it is said you are to presume this was all idle and nugatory, and that too, in a Court of Equity, whose peculiar province and pleasure it is to heal defective contracts, and carry the intention of parties into effect. This doctrine would pervert the equitable powers of a Court of Chancery.

The object and intention of Tongue, when he made the assignment, is not only obvious from the writing itself, but is admitted by the administrator, and his permitting it to remain uncancelled, affords a strong presumption that the same intention continued to the day of his death. This :record presents no sufficient evidence to rebut that presumption. We are therefore of opinion that the decree of ¿the Chancellor is erroneous, and ought to be reversed.

DEGREE REVERSED.