Brown v. Holyoke , 53 Me. 9 ( 1864 )

ApuletoN, C. J.

A mortgage, in equity, is any conveyance of lands inf ended by the parties, at the time of making it, to be security for the payment of a debt or the performance of a contract. It is enough, then, that the conveyance is intended for security.

By R. S., 1857, c. 90, § 1, when the deed is absolute on its face, with a separate instrument of defeasance executed at the same time, or, as part of the same transaction, they constitute a mortgage. It has been held, though the bond of defeasance and deed have different dates, if delivered together, they constitute a mortgage.

Bonds and deeds take effect from their delivery. Parol evidence is admissible to show when the delivery is made. So, it must necessarily be received to prove that a bond and deed are delivered at the same time and as part of the same transaction.

The deed from Jordan to Brown describes the boundaries and position as well as quantity of the land conveyed. The bond back omits the specific boundaries, but describes the land as " situate in Brewer, containing eight and eighty-six one-hundredths acres, being a portion of lot No. 4, in the first division of lots on the east side of Kenduskeag road, so called, being the same premises this day conveyed to said Brown by said Jordan.”

It is true there is a clerical error in describing the fractional part of the acre, by transposing the figures in the numerator, but that error is corrected by reference to the deed from Jordan to Brown, in which the boundaries of the land are particularly described. The bond and deed were delivered at the same time and as part of the same transaction. The bond refers to the deed and adopts the boundaries therein set forth and makes them a part thereof. Pierce v. Faunce, 37 Maine, 63; Field v. Houston, 21 Maine, 69. The boundaries of a deed must govern and control the quantity. There can be no reasonable doubt that the deed and the bond refer to the same land. In such case, there can be no need of compelling the parties to resort to equity to reform the error in the bond. By comparing the deed and bond, this error is corrected by the boundaries, to which the mere.quantity must yield.

Here was a debt to be secured, and _ that is the essence of a mortgage. The deed and bond refer to the same land, were delivered at the same time and as part of the same transaction, and, together, constitute a mortgage.

By the agreement of parties, the case is to stand for trial.

Cutting, Davis, Kent and Barrows, JJ., concurred.