Wiley v. Williamson , 1878 Me. LEXIS 30 ( 1878 )

Peteks, J.

The demandant claims under a mortgagee. The tenant claims under the mortgagor and also under the mortgagee. The mortgagee, before- his assignment under which the demandant bolds, quitclaimed the parcel which the tenant now occupies, the mortgage covering that and other parcels. The quitclaim, under which the tenant’s title became cleared of the mortgage, was before the assignment of the entire mortgage, but not recorded until after the assignment was recorded, the assignee having no notice of the prior quitclaim. Upon this case, the demandant must recover. The same rule prevails between assignees of a mortgage as between grantees under ordinary deeds and conveyances, so far as the necessity of registration is concerned. Aiken v. Kilburne, 27 Maine, 252. Pierce v. Odlin, Id. 341. Reed v. Elwell, 46 Maine, 270. Pierce v. Faunce, 47 Maine, 507. Welch v. Priest, 8 Allen, 165.

It is contended that the mortgagee did not assign the entire mortgage, but only his interest therein, such interest being that which he had not previously conveyed. The assignment contains this language: “ I hereby assign ... to the said . . . the within mortgage deed, the debt thereby secured, and all my right, title and interest in the premises therein described under and by virtue of the same.” It was held in Coe v. Persons unknown, 43 Maine, 432, that a conveyance of all the right, title and interest, which a grantor has in a parcel of land, conveys only the actual title of the grantor and not such as was apparently his at the registry of deeds. There is a difference between this case and that. Here the mortgagee assigns “ the mortgage deed.” It was determined as long ago as the case of Hills v. Eliot, 12 Mass. 26, that an assignment of a mortgage was ipso facto a transfer of the premises covered by the mortgage, and the doctrine has never been questioned from that day to this. It is very common for assignors of mortgages to use the form used in this case, considering themselves not absolute owners in fee. It would be unwise to extend the principle of Coe v. Persons unknown, to cases like this.

The tenant invokes the principle approved in Rand v. Skillin, 63 Maine, 103, and in a series of previous cases, that where all the deeds, under or through which a demandant claims, are merely releases and quitclaim conveyances, and it does not appear that any of the grantors were ever in possession, such demandant upon such title cannot recover. That doctrine is not applicable in this case. Here the title of each side comes down from the same grantor. The demandant claims under a mortgage with covenants of general warranty from such grantor.'

The tenant is in possession under his unrecorded deed. The demandant knew him to be in possession, but did not know of the deed. That does not prevent a recovery by the demandant.

Action to stand for trial.

Appleton, C. J., Walton, Barrows, Virgin and Libbey, JJ., concurred.