Bullard v. Hinckley , 5 Me. 272 ( 1828 )

The opinion of the Court was drawn up by

Mellen C. J.

If nothing rendered the sale of Houghton’s equity of redemption by the sheriff ineffectual, it follows that by the proceedings slated in the report, the tenant became the owner of this equity. And if Larrabee’s release to Houghton, bearing date July 15, 1824, after the right in equity had been seized, did not operate to extinguish the mortgage, then it did not render the sale of the equity ineffectual, but only operated as an assignment of his right and title as mortgagee to Houghton; and therefore when Houghton made his release to the tenant on the 29th of July 1825, it constituted him the owner of the estate in absolute fee simple, by uniting the two parts of the estate in him ; that is, the fee and the right of redemption.

This leads us to inquire when the release from Larrabee to Hough-ton took effect, and how it operated when it did take effect. ■ Now it appears from the report, that though it was recorded July 15,1824, on the day of its date, yet it was sent to the registry by Larrabee himself, Houghton being then and for some months after, out of the State ; and of course the release could not have been delivered till several months after the equity of redemption was sold to Everett, nor have any effect till its delivery. To construe the deed from Larrea bet to Houghton as an extinguishment of the mortgage, operating as such, before the sale of the equity, would defeat the rights of Dunlap, who had seized it on execution ; and to construe the deed as an extinguishment after the sale of the equity, would operate to cause the deed to enure to the benefit of Everett and not to that of Houghton. The release, under the circumstances of this case, could not operate to the prejudice of the tenant; but on the contrary it could and did operate by way of assignment of Larrabee’s title as mortgagee ; it was a release to him of the land; and this was released by Houghton to the tenant, as before mentioned, making him absolute owner of the whole estate. It has been contended that the release to Houghton, being recorded before the sale of the equity, was equivalent to an acknowledgment of satisfaction of the mortgage on the record. But we are of opinion that it must be considered only as a deed, and so .operating only from its delivery. And this shews that notice of this release, given to Everett on the first of August, cannot affect his purchase of the equity on the 17th; for notice of a deed that had not then been delivered, and which was then, and for months after, a dead letter, could avail nothing.

Has the demandant a better title than the tenant ? Bullard’s attachment of the land as Houghton’s was made March 28, 1824 j nine days after Dunlap attached the equity of redemption ; and his levy on the premises was May 28,1825. This was after Larrdbee’s deed to Houghton had been delivered, and was in force, as an assignment of Larrabee’s title as mortgagee; and it was before the date of the release from Houghton to the tenant. Still, such an estate could not be taken in execution for Houghton’s debts; it being only the estate held by him at that time as assignee of Larrdbee the mortgagee ; for Larrabee never had entered to foreclose the mortgage. See Blanchard v. Colburn & ux. 16. Mass. 345. Of course Bullard gained no estate or title by means of his levy on the 28th of May 1825.

From this view of the cause it is. evident that the demandant has no title. Verdict set aside and a new trial granted.