Porter v. Read

The opinion of the Court was delivered by

Shepley J.

It appears, that Andrew H. Bonney formerly owned the demanded premises, and on the twenty-third day of September, 1837, conveyed them to Amos C. True, who on the same day conveyed them in mortgage to Harvey Bonney, to secure the payment of three promissory notes of one hundred dollars each, made by him and James True, and payable to Harvey Bonney, who on the sixth of October following assigned his mortgage to Nathan Cutler, who caused the deed and assignment to be recorded the twenty-fourth of March, 1838, and on the sixth of July following conveyed by deed of release to the demandants ; who .on the same day obtained a conveyance from Amos C. True, by deed of warranty, and thereby obtained the entire title to the premises; unless the operation of the last of these conveyances was defeated by the following contract written on the back, of the deed from Bonney to' him and signed by Amos C. True on the ninth of May, 1838. “ I hereby certify, that I have this day transferred the' within deed with all its contents to Harrison O. Read, of Strong, provided the said Read takes up and delivers to me, Amos C. True, three several notes of one hundred dollars, each payable annually unto Harvey Bonney of. Strong.” Read at the same time entered into a contract in writing to take up and deliver the notes to True. The jury found, that the demandants purchased of True with the knowledge, that he had before contracted to sell to the tenant. It is admitted, that the verdict for the tenant must be set aside and one entered for the demandants ; but the counsel for the tenant contend, that their judgment on it should be a conditional one upon the title in mortgage only. In this State, the legal title to real'estate cannot be conveyed by a personal contract not under seal, although it may be in some cases by the vote of a corporation, or by proceedings in conformity to certain statute provisions. It was decided in Warden v. Adams, 15 Mass. R. 233, that a delivery of a mortgage deed under a parol contract to assign it, would not convey an interest in the estate. While in equity it has been held, that an assignment of the debt will draw the land after it. Green v. Hart, 1 Johns. 591. In this case the attempt was not to assign the mortgage but to transfer the title to the estate subject to it. The rights of the tenant exist only in contract. He has acquired no legal interest in or title to the land. And if thus situated he is not entitled to redeem, he cannot insist on a conditional judgment. It is provided by Statute c. 39, § 1, that “the mortgagor or vendor, or other person lawfully claiming under them, shall have right to redeem.” The intention was, that such person should be one lawfully claiming under the title, for the same section makes provision, that the person receiving payment should restore the possession and convey by deed all his right “ to the person making such tender, having lawful right to redeem the same, or cause satisfaction and payment to be entered in the margin of the record.” The tenant may be enabled in equity to preserve and enforce his rights under the contract with True. 2 Fonb. Eq. b. 2, c. 6, § 2, note (i). Taylor v. Slibbert, 2 Ves. jr. 437. But they cannot be recognized and enforced here. True, who denies that he has fulfilled the contract on his part, is not a party to this suit, and is entitled to be heard before there can be a decision against him. The verdict for the tenant is to bo set aside, and a verdict and judgment thereon is to be entered for the demandants.