Lessee of Dimond v. Enoch ( 1798 )

President.

A conveyance may be considered as a mortgage, though the defeazance be on a separate paper. We have not sufficient evidence, on which to found an opinion how this transaction ought to be considered.

But I do not think, that we ought to strain hard, to construe a transaction of this kind as a mortgage. If, without violating any rule of law, we can consider it as the parties intended, we ought to do so. It may be considered as a conveyance on a certain condition, the default of payment on the day. Each party may have wished to avoid the costs and trouble of a suit on a mortgage. Fitzpatrick may be supposed to say, “Give me five months to pay the money without interest, and, if I do not, the land shall be yours and Enoch to say 'I agree.'

Suppose it a mortgage with possession ; cases might exist, in which a tender of only the debt and interest ought not to extinguish the estate. A man going into possession under a contract is not as a trespasser. May he not have a claim for necessary or proper repairs of improvements ? Or must he abstain from them, on the mere possibility of the other performing the condition ?- Was Enoch to have nothing for his warrant and survey ?

I lay not much stress on the conversation (for it seems to be nothing more) between Dimond and Enoch in the year 1789 or 1790. No specific proposition appears to have been made ; but only a trial whether Enoch was willing to depart from his contract with Fitzpatrick, and allow Dimond something for his speculation. No tender was made till 1797, ten years after the condition ought to have been performed. This seems to be unreasonable negligence. While it was doubtful whether the land was worth more than the money, Dimond seems to have been very inactive or indifferent. When an extraordinary rise in the value of land happened ; he presses for the land.

If the plaintiff’s counsel think this must be construed as a mortgage, they may move for a new trial. For I have said that it may be construed otherwise.

Verdict for the defendant.