Paine v. French ( 1829 )

By the Court :

1. It seems to be settled law, that an assignment of a note in writing, and delivery of the mortgaged deed, transfers all the rights secured by the mortgage. 1 Johns. 580; 3 Johns. Cas. 322; 2 Sw. Dig. 110; 4 Johns. 41; 1 Gallison, 155; 1 Ohio, 320.

2. Is the mortgage to Pease defective, for want of a seal to the acknowledgment of the justice of the peace? No seal, or other ceremony, in the acknowledgment of deeds, executed by a, man, or by an unmarried woman, was required by any law of this state, until the statute of 1819. Vol. xvi. 192. The law adopted from Pennsylvania, in 1795, required that all deeds executed by husband and wife should be acknowledged in a certain manner, and such acknowledgment should be certified, upon the deed, under the hand and seal of the judge, or justice of the peace.

This distinction between deeds executed by husband and wife, and other deeds, was maintained in the statutes of 1802 and 1805, and it was not till 1818 that the distinction was annulled,.and a seal required to the acknowledgment of all deeds.

The seal, and other ceremonies, in the acknowledgment of deeds by husband and wife, were doubtless intended to protect the rights of married women; and were originally introduced into our law to supply the place of the common law formalities, in the conveyance of real estate by femes covert.

The mortgage in question having been executed in 1814, by French alone, no seal was required to the acknowledgment; it was, therefore, well recorded, and conveyed notice to Ford.

3. The mortgage having been duly recorded, Ford’s subsequent purchasefwas necessarily subject to the rights of the mortgagee,, or his assignee, unless there was such a fraudulent suppression of the truth, or suggestion of falsehood, by *Phelps, as to authorize a court of equity to postpone or annul his mortgage. If, at the time of Ford’s advancement or purchase, Phelps denied, or stood by, and when questioned, concealed his own title, he practiced a fraud, and has no right against Ford. 4 Johns. Ch. 65.

Ford, in his answer, alleges that Phelps drew up the deed, and was not only silent as to his own claim, but asserted that there was no mortgage or other lien on the land, except Coit’s mortgage. This allegation is not responsive to any charge contained in the bill, but is new and distinct matter, set up in the answer, to avoid a pre-existing right in Phelps, and must therefore be proved. Z Johns. Ch. 62; 2 Vesey, 587; 1 Johns. 580. It is agreed between the parties, that Phelps drew up the deed from French to Ford; but this circumstance neither proves nor disproves the charge of fraud. It is not sufficient to postpone a prior mortgage, that the mortgagee assisted in the execution of a second mortgage; but it must appear affirmatively, that the first mortgagee denied or fraudulently concealed his title. The mortgage of Phelps being duly recorded, was notice to all the world, and the fact that he acted as a scrivener in drafting a subsequent mortgage, can not, per se, operate as a forfeiture of his rights. There is no evidence that Phelps, at the time, either concealed his title or denied its existence.

The only testimony in the cause is the deposition of the younger Ford, and that refers exclusively to a transaction in 1826, a few days before the death of Phelps, and nearly eight years after Ford’s purchase or advancement. This testimony, taken in its strongest sense, amounts to no more than an admission by Phelps that the mortgage money had been paid. But Ford, by his pleadings, does ■not rest his rights-upon this ground. He does not pretend, in his .answer, that the mortgage was paid in 1826, or at any other time, but insists that Phelps shall be postponed, by reason of the alleged fraud practiced in 1818. His proof does not correspond with, or support his allegations. A defendant can not set up one defense in his answer, and upon the final hearing rely upon another. His allegations and his proofs must correspond.

Decree for complainant.