Weed v. Barker , 35 N.H. 386 ( 1857 )

Perley, C. J.

It appears from the case that the parties to the mortgage under which the demandant claims, resided at Lawrence, in Massachusetts, and the land is at Rochester, in this State. The evidence introduced by the defendant went to show that the bai’gain for the loan, and for the mortgage to secure it, was made. at Rochester, and that for convenience the mortgage was made and recorded while the parties were in the county where the land lies, and the loan and note made pursuant to the bargain, at Lawrence, a few days afterwards. A verdict was taken, by consent, for the demandant, and it is not objected that the mortgage was fraudulent. The objection is, that the debt was contracted after the mortgage was executed and delivered, and that the mortgage is therefore void under the statute. The provision of the statute is as follows: “ No estate in mortgage shall be holden by the mortgagee for the payment of any sum of money, or the performance of any other thing, the obligation or liability to the payment or performance of which arises, is made, or created, after the execution and delivery of such mortgage.”

The apparent object of the statute was to prevent a mortgage being made that should cover the land as a valid security, though the debt or obligation which it was made to secure did not exist at the time when the mortgage was executed, and intended to take effect as an incumbrance on the land. Under the statute the debt or obligation must be in existence at the time when the mortgage takes effect as a conveyance and security.

In the present case it does not appear to have been the intention of the parties that the mortgage should take effect before the loan was made and the debt contracted. The exact time which passed between the execution of the mortgage and the making of the loan is not stated; but we cannot infer that it was longer than was necessary for the convenience of making and recording the deed in this State, where the land lies, and where the parties then were, and paying over the money and giving the note in Lawrence, where they resided. On this state of facts the execution of the mortgage and the loan of the money must be regarded as parts of the same bargain and transaction. The agreement was entire, and, until it was completed by the note and loan, the mortgage could have no operation, and was not intended to have any. The mortgage was a mere incident to the note and loan, and until the loan was made the demandant could do nothing with his mortgage.

The execution and delivery of the mortgage mentioned in the statute must mean such execution and delivery as were intended to give the mortgage effect as a conveyance and security. The manual transfer of the deed to the hands of the mortgagee would not be such a delivery, unless it were transferred to his possession with that intention. Here was no execution or delivery that gave any operation to the deed, or was intended to give any, till the money was paid over at Lawrence, pursuant to the bargain made when the deed was executed and recorded here. There was no design to cover up the land by a mortgage to secure future advances; the lending of the money and the effective and operative execution and delivery of the deed were intended to be, and were in law, simultaneous.

This mortgage was not made to operate as an incumbrance to secure future advances, and, in the absence of the statute, would not in law have had that effect. We think, therefore, that the statute does not apply to this case. If the ante-dating of the note and mortgage had been intended to defraud creditors, the mortgage might be invalid as to them on general principles. But fraud is not alleged as an objection to this mortgage.

Judgment on the verdict.