Vose v. Handy , 2 Me. 322 ( 1823 )

Mellen C. J.

at the succeeding term in Cumberland, the action having been continued nisi for advisement, delivered the Opinion of the Court as follows.

We have listened with much pleasure to the able arguments which have been ufged by the counsel on both sides; and carefully examined and considered the principles and cases that have been relied upon.

Both parties claim under the mortgage-deed made on the 26ih of April ’1805, by Daniel Fowle to the bank incorporated in 1804. In speaking of this bank, for brevity’s sake, we call it the old bank; and the other, which was incorporated in 1812, we shall call the new bank.

The premises demanded are not bounded and described in the mortgage in the same manner as in the declaration; but this will be more particularly noticed hereafter; The demand-ant's title, as he has disclosed it, is under a judgment recovered by him at the Court of Common Pleas, April term 1822, against the old bank for $2833,42, on which execution duly issued: by virtue of which, on the 3d of June 1822, Kimball, a deputy sheriff, sold at public auction all the right and title of the* old bank acquired by said mortgage deed, and to the debt, to secure Which the deed of mortgage was made, to the demandant who purchased the same; and the officer on the same day gave a deed of the premises, so sold to him; which deed, on the next-day, was duly registered. It has been contended that, independent of the facts disclosed in the defence, the demandant is entitled to recover upon those which he himself has proved.

The first objection is that the charter of the old bank had expired long before the judgment abovementioned was recovered, viz. in October 1812. And though it was continued for certain purposes by the act of June 24, ,1812, to October 1816 9 and by the act of December 14,1816, for three years longer; and afterwards, by the act of June 19, 1819, for three year's longer 9 still it has been contended that the old bank never assented to this "extension; and that without such assent, those extending acts never were binding on them ; because such extending is in the nature of a new 'charter / — and that no charter can ever bind those to whom it is granted, without their acceptance of it. It is very questionable whether it is competent for third persons to make this objection 9 and not only so, but in so doing, to impeach the merits of a judgment in this collateral manner. But we do not' proceed on this ground, nor is it necessary; because we consider the case of Foster v. Essex Bank, 16 Mass. 245, and Lincoln and Ken. Bank v. Richardson, 1 Greenl. 79, as deciding the merits of this objection. — The counsel for the tenant has relied upon an apparent discrepancy between these two cases as to the necessity of the acceptance of an act continuing a charter of a bank. There is perhaps á want of clearness; perhaps some inaccuracy of expression, in that part of the opinion in the latter case, which relates to this point. But it will be seen that the Court in that case, declared themsélves perfectly satisfied with the reasoning and conclusion of the Court in Foster v. Essex Bank, and that the same principles ought to govern both cases. The C. J. of this Court stated that the same principle of law applied to an act, continuing a charter beyond its original term, as to an act, which granted the charter ; that in both cases, the grant or chartered powers must be accepted. The above remarks were made in a case where a bank was plaintiff and the language’used had reference to chartered powers, not corporate liabilities. The question of liabilities had been settled on sound principles in Foster v. Essex Bank, the opinion in that case had been approved and adopted by this Court; and in both cases those liabilities related to debts contracted pri- or to the expiration of the . original charter. Hence it appears that the expression thus limited and understood, does not, nor was it intended to convey an idea at variance with .the opinion in the case last mentioned. This objection therefore we overrule.

The second objection, founded on the defects in the demandj ant’s own proof is, that the land sold by the officer, and convey-» ed to him is not the land demanded; inasmuch as the description in the deed of the officer, though agreeing with that in the mortgage, varies essentially from that in the declaration; and in fact embraces no yurt of lot No. 29, but the southerly half of lot No. 28 on Jones’ plan. There certainly is a mistake %■ and it arose from the circumstance of using the word “ northwest” instead of “" southwest” in commencing the description of the land intended to be conveyed, both by the mortgagor and the officer, which was the south half of lot No. 29. It may again be observed that both parties claim under the same mortgage deed; and in the deed from Fowle to the tenant, executed on the 16lh of December 1816, and conveying all his right, we find the same erroneous description, occasioned by the substitution of the Word “ northwest” for “ southwest.”

Our attention is then directed to the following facts, viz. that Dexter the grantor of Fowle, lived on the south half of No. 29,-when he conveyed to Fowle, and Fowle went into possession of that half of No. 29,- under Dexter’s deed f. and continued thereon until 1816,- When he sold his night to the tenant as before stated j that another man at the timé lived on the north half of lot No. 29, claiming it as his own; and the south half of No. 28, was occupied by a person then and ever since residing thereon; there being also an eight rod range-way between Nos-28 and 29. Besides, the mortgage and the officer’s deed both; purport to convey a part of lot No. 29.

With all these facts before us, we must collect the intention of the parties concerned, and give effect to the deeds according to such intention, if legal principles do' not forbid it. Where" several particulars are named,- descriptive of the premises conveyed, if some- are false or inconsistent',- and the true be sufficient of themselves, they will" be retained, and the others rejected, in giving a construction to the deed ; as in case of Worthington & al. Ex’rs. v. Hylyer, 4 Mass. 196. See also Jackson v. Clark, 1 Johns. 217. The land described as conveyed, in the case before us, is part of lot. 29 ; which it cannot be, on the supposition that the word “ northwest” was used intentionally and without- any mistake 5, but if we compare the description in the deeds with the facts above stated, as to the ownership and oc« cupation of the north half of Mo. 29, and the south half of Mo. 28 ; and the constant possession of the south half of Mo. 29, by Dexter and Fowls, the intention seems clear; and for the purpose of giving effect to the deeds we ought to reject the word “ northwest” altogether. The description then will be sufficiently explicit; it will include, the south half of the lot mentioned, viz. Mo. 29, and cannot include any other ;■ and conform also to the ownership and possession of that half and of the adjoining land. If it were necessary to. decide the cause on this point, we incline to. the opinion that such would be our construction. But our decision, is founded on certain facts which have been disclosed and relied on in the defence. Some of those facts we proceed to mention, , ¿, ■

It appears that on the first of February, 1814;, the saidmort-. gage deed and the bond, to secure the payment of which, the mortgage was given, were delivered by the old bank to the President, Directors and Company of the. new bank,. who thereupon paid to the old bank the sum of f590, being the whole amount due o,n the bond and mortgage. There was. no written transfer or assignment thereon; nor does it appear-by any testimony in the case, that there was any assignment whatever in writing, off either of them. The transaction however, such as it was, be* tween the old bank and the new bank, in relation to the bond and mortgage, it is contended by the counsel for the tenant, amounts to a legal assignment of them both ; but, if not of both, at least,, of the bond and the debt thereby secured';, and that, of course, there was no interest, in the old bankfin the bond, debt or mortgage, which could have been legally, sold and conveyed to the demandant by virtue of the Statute of 1821, ch. 60. The provisions of that statute relating to the subject, are contained in. tbe fourteenth and fifteenth sections. They deserve particular consideration, as they are peculiar in their nature, and form exceptions to the general law relative to this species of property. — The fourteenth section is. in these words, viz.: “ That all “ the right, title,, claim and interest of any bank now incorpor- “ ated, or which hereafter may be incorporated by law', in any il lands, tenements. qr; hereditaments, which has been or shall “ be mortgaged for security of any debt due or assigned tq sucfi. “ bank, shall be liable to be seized on any writ of execution « issued on any judgment rendered, or which may hereafter be “ rendered by any Court in this State, and sold at public auc- “ tion in the same manner as is prescribed for the sale and con- “ veyance of tlie real estates of such banks in this act.” The provisions of the 15th section, so far as necessary to he examined upon this point, are in these words, viz. “ That any “ debts secured by such mortgage and due to such bank at the “ lime of the sale of such mortgage, shall pass by the deed of- “, conveyance, executed by the officer who shall serve such writ of execution, and be completely, and to all intents and “ purposes transferred to, and vested in such purchaser; and « such purchaser or his legal representative may, in his “ own name, maintain any action proper to recover such debt, “ or to obtain possession of such lands, tenements, or heredita- “ ments, which might have been maintained in the name of such “ bank, had no such sale been had.” From a view of these provisions, it is evident that the cases provided for, are those in which a bank is. either mortgagee or assignee of a mortgage, and the debt, secured by such mortgage, is due to such bank at the time of seizure and sale on execution. — The last, member of the sentence above quoted plainly shews this; as it gives the purchaser the same right to recover the debt, and obtain possession of the premises, as the hank would have had, if there had been no sale. — The law is founded on the idea that the real and the personal security are both holden and owned by the bank; because the provision is special and particular that a sale of the mortgage shail operate to pass and convey to the purchaser any debt secured by such mortgage and then due to the bank; and this is reasonable; because the bond need not be recorded, but the mortgage usually is. Hence a copy of the deed is by statute made prima facie evidence of the deed and of the bond or note on which the mortgage is founded. The provision seems also, conformed to the principle and practice which requires that a mortgagee, in a suit on the mortgage deed, before he can obtain his conditional judgment, must file" or produce in Court the bond or note on which the mortgage is founded; that the Court may know what payments have been made, and how much is due in equity and good conscience : for such sum only, pan the conditional judgment be rendered ; and if all the debt has been paid by the mortgagor or his representatives or asr signs ; or if the mortgagee has assigned the bond or note for a full consideration paid to him, there is no reason in law or justice why he should have any judgment whatever in his favour, though he never has assigned the mortgage.

We have now arrived at the principal inquiry in the cause, which is, whether any property or interest passed to the demandant, by KimbalPs sale on the execution ; or in other words5 whether prior to that time, the old bank had divested itself of all title and right in and to the demanded premises, by the alleged assignment to the new bank in 1814, as before stated.

It was intimated by the counsel for the tenant that there was proof of an assignmént of the mortgage by deed to the new bank; because that averment is contained in the declaration in the suit by the new bank against Fozule wherein judgment was rendered on default, at August term, 1815. But though this iudgment might estop Fowle, it cannot have any such effect in respect to the demandant — a stranger to that suit.

Several cases have been cited from Johnson's Reports by the counsel for the tenant, to show that a mortgage may be assigned by parol or by delivery merely. Those from 1 11 Johns. are strong in favour of the tenant, and go very far towards sup- ■ porting the position of the counsel. But we are well satisfied that the principles of law upon this point have never been carried so far in Massachusetts or in this State. Our statute of 1821, ch. 36. seems decisive of this question; and to require that the assignment of a mortgage should be made by deed.— The form of declaring in an action by the assignee of a mortgage against a mortgagor shows this ; it is always alleged that by virtue of the deed of mortgage, the mortgagee became seized in fee; this very averment shews that such an estate cannot be conveyed to thé assignee but by deed. The case of Martin v. Mowolin, 2 Burr. 970, has so. long been the subject of critical animadversion by Judge Trozebridge and many learned Judges since his time, that it cannot be deemed an authority. Indeed the cases of Gould v. Newman, 6 Mass. 239. Warden v. Adams, 15 Mass. 233, and Parsons v. Welles, 17 Mass. 419, render a further examination, on opr part, of this point in the defence: wholly unnecessary.

The only question then remaining is, whether the delivery of the bond accompanied, as it was, by the mortgage deed, by the old bank to, the new bank, and the receipt from them of the whole amount due on the bond and mortgage, amounts in law to an assignment of the bond and the debt due thereby; for if so, then the sale by Kimball wa§ wholly ineffectual, and the verdict must be set aside.

We had occasion, in the case of Clark v. Rogers [antep. 143.] to remark that for many years Courts of Justice had been gradually becoming more and more inclined to protect equitable interests; that less form is necessary now than formerly, as to. the mode of creating such interests; that the object has been to ascertain that it was an interest.founded in equity and justice, and on good and adequate consideration. A series of cases decided in Massachusetts prior to our separation, will show the correctness of the above remark. In Perkins v. Parker, 1 Mass. 123. the Court doubted whether an assignment must not be by deed. In Quiner v. Marblehead Social Insurance Company, 10 Mass. 476. it,was decided that an assignment need not be by deed ; but that the delivery of the certificate with an indorsement upon it for a valuable consideration, was. a sufficient transfer of the right to become a stockholder. In Brown v. Maine Bank, 11 Mass. 153. an assignment of a judgment and execution by a writing on the back of the execution, for valuable consideration, was holdcn to be good. In Mowry v. Todd, 12 Mass. 281. the Court held that an assignment on the back of a contract written but not signed, and the contract handed- over to the alleged assignee, was a valid assignment, if assented to by the person who was bound by the original contract. In Jones v. Witter, 13 Mass. 304. a negotiable promissory note, for an adequate consideration, was assigned by delivery only, and held good. The Chief Justice says, “ There are cases in the old books which shew “ that debts and even deeds may be assigned by parol, and we “ are satisfied there is no sensible ground upon which, a writing “ shall be held necessary to prove an assignment of a contract, “ which assignment has been executed by delivery any more “ than in the assignment of a personal chattel.”-

In the case of Dunn v. Snell, 15 Mass. 181. the Court went farther still, and decided that a mere delivery over of an execu-. lion, was an assignment of it, and of the judgment.. And in Prescott v. Hull, 17 Johns. 284. Spencer C. J. delivering the opinion of the Court, and speaking of the validity of assignment, says — “ I do not consider the want of a seal essential;— “ the mere delivery of the chos'e in action, upon good and valid “ consideration, would be sufficient, even were it a specialty. It u ought however to be alleged that the assignment was for á u full and valuable consideration.”

The new bank, claiming under the assignment from the old lank, commenced their action against Fowle (in which they de-. dared as assignees of the mortgage) and obtained judgment in •August 1815 ; — of course, this amounted to notice to Fowle of the assignment, and the claim of the new bank under it. After this, Fowle would not have been justified in paying the debt to-the old bank. The new bank had the custody of the bond, and might legally cancel it, or release the debt 5 and if the new bank had commenced an action on the bond in the name of the old lank, after the assignment was made, the Court would not have suffered the old bank to become nonsuit or discharge the action*-.

On the whole, we are satisfied, after a long and laborious in-5 vestigation, that the action cannot be maintained ; and accordingly the

Verdict is set aside, and a new trial granted*