Ladd v. Wiggin , 35 N.H. 421 ( 1857 )

Fowleh, <T.

The levy of the defendant’s execution vested in him an actual seizin of the land levied upon, as against Newell Tilton and all persons claiming under him by title subsequent to the defendant’s attachment. All the title of Tilton in the premises levied upon, as between the parties, passed to the defendant by the levy. Upon this point the officer’s return was conclusive and not to be contradicted by any one. Brown v. Davis, 9 N. H. 78; Parker v. Guillow, 10 N. H. 103; Angier v. Ash, 6 Foster 105, and authorities; Swift v. Cobb, 10 Vt. 282; Gore v. Brazier, 3 Mass. 523; Blood v. Wood, 1 Metcalf 528, 534; Gorham v. Blazo, 2 Greenleaf 232; Langdon v. Potter, 3 Mass. 215; Proctor v. Newhall, 17 Mass. 81; Bott v. Burnell, 9 Mass. 98.

As against Newell Tilton and his privies, the levy gave the defendant a vested and perfect title, dependent on the officer’s return, and no evidence could be raised to impeach or destroy the validity of the return for the purpose of establishing that title. The only purpose for which the execution and return were offered in evidence by the defendant, was to sustain his title to one hundred and forty-one fifteen hundredths of the premises demanded by the plaintiff in his writ. He alleged that by the levy he had acquired-Tilton’s interest in that share of the premises, and, as his creditor, was entitled to hold the same against the fraudulent conveyance thereof to the father of the plaintiff.

Under the circumstances of the case, the only legitimate purpose for which the evidence offered by the plaintiff and rejected by the court could have been proposed, was to defeat the defendant’s title against Newell Tilton through the levy, and thus show that he was in no situation to contest the plaintiff’s claim to the premises in controversy. In other words, its object was to show that the defendant’s levy was invalid as against Newell Tilton. But, on that point, the return was conclusive against all the world, and could not be contradicted. The evidence was therefore properly rejected. Dickinson v. Lovell, 35 N. H. 9; Estabrook v. Hapgood, 10 Mass. 313; Bott v. Burnell, 9 Mass. 98; 15 Mass. 232; 17 Mass. 591.

The conveyance of November 1,1853, absolute in its terms, but made for the purpose of recovering a debt, with an understanding between the parties that the land was to be reconveyed upon payment of the debt and nine per cent, interest, as found by the jury, was void ; that is, voidable not only against existing creditors, but against those who might have become such after its execution. Smith v. Lovell, 6 N. H. 67; Paul v. Crocker, 8 N. H. 288; Tifft v. Walker, 10 N. H. 150; Smith v. Smith, 11 N. H. 460.

The jury have also found that the $350 mortgage and note were delivered up by Ladd to Tilton, in consideration of the execution of the deed of November 1,1853. Did such surrender, for such consideration, operate to extinguish the mortgage debt and release the mortgage as between the parties, or as against the creditors of Tilton ?

It is well settled that nothing but payment in fact of the debt, or a release by the mortgagee, will discharge a mortgage. Crosby v. Chase, 5 Shepley 369; Elliot v. Sleeper, 2 N. H. 525; Willard v. Harvey & al., 5 N. H. 252; Pool v. Hathaway, 9 Shepley 85; 9 Mass. 242; 16 Pick. 225; 7 Vt. 493.

And it is equally well settled, that the taking of a second collateral security for the same debt upon the same property, even of a higher nature, does not extinguish or discharge the first. Gregory v. Thomas, 20 Wendell 17; Burdett v. Clay, 8 B. Monroe 287; Day v. Neal, 14 Johns. 404.

Adjudications for several centuries, of cases of every variety of form, establish the proposition, that a subsequent security for a debt, of equal degree with a former for the same debt, will not, by operation of law, extinguish it. Manhood v. Crick, Cro. Eliz. 716; Norwood v. Gripe, Cro. Eliz. 727; Maynard v. Crick, Cro. Charles 86; Erie’s Case, Lit. Rep. 58; Higgins’ Case, 6 Coke 45; Rhoades v. Barnes, 1 Burr. 9; Philips v. Johnson, 8 Johns. 54, 58; Preston v. Preston, Cro. Eliz. 817; Mumford v. Stocker, 1 Cowen 178; Andrews v. Smith, 9 Wendell 53.

When the securities are of equal degree, they shall be intended and held to be distinct and independent, although both are liens upon property. A debt is not honestly extinguished until it is paid in cash or its equivalent, and to multiply artificial mergers will not further the cause of fair dealing. Higgins’ Case, 6 Coke 45; Andrews v. Smith, 20 Wendell 17.

To make the second security an extinguishment or discharge of the first, there must be an express release, or at least an implied release from a covenant not to sue. Phelps v. Jackson, 8 Johns. 58.

It is true that where the estate of the mortgager and mortgagee become united in the same person, primé facie, the mortgage debt is extinguished. Greenough v. Rolfe & al., 4 N. H. 368, and authorities. And the delivery of the note by the mortgagee to the mortgager, is primé facie evidence that the mortgage was discharged. Smith v. Smith, 15 N. H. 55; Johnson v. Nations, 26 Miss. 147. And where the mortgagee purchases the mortgaged premises and receives a deed in fee simple, paying a part of the consideration by the delivery of the note which the mortgage was given to secure, the mortgage is thereby primé facie, paid and extinguished. Jennings' lessee v. Wood, 20 Ohio 261.

But all these inferences and conclusions of law and of fact are open to explanation, and may be rebutted and controlled by evidence. And we think they must be considered to have been explained, rebutted and controlled by the evidence in the present case. The instructions of the court to the jury must be regarded as having been, in substance, that if they found that the ‡350 note and mortgage were given up otherwise than in consideration of the new deed, absolute upon its face, but accompanied by a secret trust, rendering it as between the parties a conditional rule or equitable mortgage, they must find a verdict for the defendant. And, under the constructions, a verdict for the plaintiff for a conditional judgment for the amount of the mortgage debt, less the illegal interest included therein, must be considered as establishing the fact that the mortgage debt was not extinguished or the mortgage released by the transactions of November 1,1853, but that the debt was simply included in and re-secured by tbe fraudulent deed of that date; that the note, constituting the original evidence of its existence, was given up with the express understanding that it was not paid and extinguished, but united with the $420 then advanced and the $250 due upon other notes, and remained secured by the new lien on the same land. The new security having failed, the mortgagee was at liberty to fall back upon the original mortgage for the security of his debt. As between the parties, after the verdict rendered under the instructions, the whole final transaction in relation to the original debt and mortgage, may be regarded as having existed only in contract, and that contract having been pronounced void as to creditors, and been avoided by them, the debt and mortgage continue in full force and validity. The agreement between the parties may be taken to have been, that if Tilton redeemed the property from the deed of November 1, 1853, which was to be done only by the payment, among other debts, of the original $350 mortgage debt, the first mortgage was to be released, otherwise not. This agreement proving ineffectual, as fraudulent and void, the-mortgagee was in no worse situation than if it had never been made, but was at once remitted to his previous rights.

The general rule of law, as between parties, is, that where a contract is avoided for any cause, each is restored to his previously existing rights. They are placed back in their original position. Thus, a person who has been defrauded in a contract, returns what he has received, and rescinds the contract, and may then maintain an action to recover what he parted with, if it be not restored to him on demand. The infant, by avoiding his deed, rescinds the whole contract. So, where a party avoids a usurious contract, the opposite party is restored to his previous legal rights, and may recover any legal claim previously existing, although it may have been mingled in the usurious contract, and to have been canceled. Cook v. Gilman, 34 N. H. 556 ; Bigelow v. Kenney, 3 Vt. 353; Edgell v. Stanford, 6Vt. 551.

In the case before us, the statute makes the absolute convey-anee void ; that is to say, voidable at tbe election of the grantor’s creditors. When those creditors avoid this absolute conveyance, the law remits and restores the other party to his previously existing legal rights. This gives the statute its proper and legitimate effect, permits the purchaser to hold nothing by his fraudulent contract, and the creditors to take all their debtor fraudulently conveyed, and nothing more. To give it any other construction, would be to create penalties beyond those contemplated by its enactment, and compel the fraudulent purchaser” to surrender, not only all he may have fraudulently purchased, but his previously acquired bond fide securities on the property.

The presumption of payment was rebutted by the finding of the jury. The note was given up upon the taking of the fraudulent conveyance, and the debt included in that conveyance which the creditors have now avoided. The very avoiding of the fraudulent conveyance revived and renewed the former valid lien,- restored the parties to their original position. Marshall v. Wood, 5 Vt. 256; Irish v. Morse & al., 10 Vt. 81; Hoyt v. Demon, 5 Day 479; Towle v. Hoit, 14 N. H. 61; Haven v. Low, 2 N. H. 18.

No objection has been urged to the instructions of the court below as to the effect or amount of deduction for the illegal interest included in the mortgage note, and we are not aware that any could properly be taken to them. The defence of usury is personal, and as against a subsequent purchaser, only the amount of illegal interest is to be deducted from the conditional judgment for the amount due on a mortgage. Reading v. Weston, 7 Conn. 418; DeWolf v. Johnson, 10 Wheaton 367, 393; Post v. Bank of Utica, 7 Hill. 391.

The mortgage debt, less the illegal interest included in the note, then, subsisting at the death of Daniel G-. Ladd, was a chose in action, which, on well established principles, his admin-istratrix could assign and transfer by a proper instrument for that purpose, without license. The mortgage was a mere incident of the debt, assignable in the same way. Glass v. Ellison, 9 N. H. 69; Southerin v. Mendum, 5 N. H. 420; Ellison v. Daniels, 11 N. H. 274.

Upon the decease of an intestate and the granting of administration, his personal estate, and all contingent as well as absolute interests therein, vest in his administrator, including his bonds, contracts and choses in action, as well as his goods and chattels, and can be diverted only by operation of law, or some act of the administrator. Com. Dig., Admr., B., 10-13; Dawes v. Boylston, 9 Mass. 352; Clapp v. Stoughton, 10 Pick. 468; Jewett v. Smith, 12 Mass. 309; Goodwin v. Jones, 3 Mass. 514; Mayes v. Jackson, 6 Mass. 149; Johns v. Johns, 1 M’Cord 132; 3 M’Cord 371.

As the rulings and instructions upon the trial were correct, there must be,

Judgment on the verdict.