Bell v. Twilight

22 N.H. 500

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

Perlby, J.

The deed of Hannah Eitts to the demandant was a mere release and quitclaim, and could not work a forfeiture of her estate for life. At the common law, upon feudal reasons which never prevailed in this country, if tenant for life made a forcible conveyance, which devested the seisin, and turned the estate of him who had the inheritance into a right of entry, the estate of tenant for life was forfeited. Rut a grant or release never had that effect. Co. Lit. 251 b.

Hannah Eitts, by her deed of October 2, 1841, conveyed to the demandant all her interest in the premises, including her right to an assignment of dower. The demandant, holding this title, took from the tenant a conveyance of part of the land, for the life of Hannah Eitts, in lieu of her dower. If Hannah Eitts had an estate for her life in all the land which she conveyed to the demandant, she was not entitled to dower, nor had the tenant an estate which would enable him to assign dower. The tenant takes the ground, that, by claiming and accepting an assignment of dower from the tenant, the demandant is estopped to set up an estate for the life of Hannah Eitts, which is inconsistent with the demand and acceptance of an estate for her life in part of the land, instead of her dower.

But the principle upon which estoppels in pais are allowed, does not apply to this state of facts ; the defendant, if the demandant owned all the land, by an assignment of dower, parted with nothing that belonged to him. By accepting part of his right, the demandant is not estopped in law to demand the rest. If it had been a question of fact for the jury, whether the demandant, when he took his mortgage from Ebenezer Eitts, had actual notice of the unregistered deed to Hannah Eitts, under which he now claims, his claiming and accepting dower of the tenant might be evidence, in the nature of an admission, that he had no such notice, and therefore had no other title than the right to an assignment of dower in the name of his grantor, and that he could not claim the land against the mortgage held by the tenant; but, like other mere admissions, it would be no more than evidence, and might be explained or contradicted. 1 Greenl. Ev. *§>§ 195,196 ; Hathaway v. Spooner, 9 Pick. 23.

The mortgage deed from Ebenezer Eitts to James Bell contained a power to sell, in these terms: “It is agreed that, upon non-payment of either of the sums aforesaid, within eleven months from the date thereof, said Bell may sell at public auction so much of said land as may be necessary to raise said sums and give a clear and indefeasible title thereto.”

It may, perhaps, admit of doubt, whether such powers to sell, granted in mortgages, are valid under our statutes, which define and fix the right of redemption and provide easy and prompt methods of foreclosure. Many of the reasons, which have induced courts in other jurisdictions, after some hesitation, to give such powers effect, would not seem to prevail here. Powell on Mortgages, 13 ; 4 Kent, Com, 140.

Taking it, however, to be valid, this is not a naked power to sell; but a power coupled with an interest, given and granted to the mortgagee as part of the security for his debt, and held and executed for his benefit, being intended to give him a more speedy and summary way of realizing the money due, than he could have by the ordinary method of entry and foreclosure. The power is part of the security and of the mortgagee’s estate in the land, and, as such, passes to an assignee, with the debt and mortgage. Kent says, (4 Com. 141,) “ These powers fall under the class of powers appendant, or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person who, by assignment or otherwise, becomes entitled to the money secured to be paid.”

The statute .which provides for the registration of deeds, (Rev. Stat. chap. 130, <§> 4,) enacts that “ no deed of bargain and sale, mortgage, or other conveyance of any real estate, or any lease for more ■ than seven years from the making thereof, shall be valid to hold the same against any person but 'the grantor and his heirs only, unless such deed be attested, acknowledged, and recorded, according to the provisions of this chapter.”

This power to sell was an interest in the land, which vested in James Bell, under his mortgage; he was neither grantor, nor heir of the grantor, in the deed of Ebenezer Eitts to Daniel and Hannah Eitts; and, therefore, he comes within the express terms of the statute, which makes the unregistered deed invalid to hold the land against any person but the grantor and his heirs. And his right to sell under the power is also as much within the reason and policy of the statute, as any other part of his security. He trusted to the security of the mortgage, including the power to sell, and there is no reason why one part of the legal security should be protected more than another, against a prior unregistered conveyance.

And if the power to sell could not be affected by a prior unrecorded deed, of which the mortgagee had no notice, it follows, of course, that such prior deed would not be valid to hold the land against a purchaser under the power.

In this view of the question, it is not necessary, for the disposition of this case, to decide whether the power was executed and the tenant holds the land by that title, or whether he is in as assignee under the mortgage. Both of these titles are protected against the unregistered deed, unless Mr. Bell was charged with actual or constructive notice of it when he took his deed. But as the cause must go to a new trial, and the question may arise again on another state of facts, and it may be convenient for the parties to understand the views of the Court on this point, they have considered, it, and are of opinion that the tenant must hold as assignee under the mortgage, and not as purchaser under the power.

The quitclaim deed of Bell, and his assignment of the mortgage to Twilight, both bear the same date of xlpril 29,1837, appear to have been made on the same consideration, and must be regarded as parts of the same transaction, and intended to carry into effect one and the same object. The legal effect will be the same as if the release and assignment had been included in the same instrument. Mr. Bell had an estate as mortgagee, and a power to sell.

The deed was sufficient to assign the mortgage, and so convey the interest of the mortgagee, or, if the preliminary steps in the sale by auction were duly taken, to convey an absolute title to the land by execution of the power. In such case, it is established as authority, that the deed shall operate as a conveyance of the interest, and not as an execution of the power. Colt v. Bishop of Litchfield and Coventry, Hob. 159 ; Bennet v. Aburrow, 8 Vezey, 609; Denn v. Roak, 5 Barn. & Cress. 720; S. C. 2 Bing. 497 ; Lanley v. Sneyd, 3 Bro. & Bing. 243 ; Davies v. Williams, 1 Ad. & Ellis, 588; Bradish v. Gibbs, 3 Johns. Ch. Rep. 551.

On this general ground, Twilight must be held to have taken as assignee of the mortgage, and not as purchaser of the land under the power.

And the particular circumstances of this case are also strong to show that the transaction could not have been understood or intended as an execution of the power. The power was granted to raise the money due on the mortgage by sale of so much of the land as might be necessary for that purpose. Of course, the money raised by the sale was to be applied in payment of the debt and discharge of the mortgage. In this case there wras no such application of the money; on the contrary, the debt is kept on foot and assigned with the mortgage. The debt was not extinguished, hut remained in full force, and the creditor was not confined to his remedy on the mortgage ; he might have enforced payment by suit against Eitts, and compelled him to pay, if he were able. The sale of the land under the power, and the assignment of the debt and mortgage are entirely inconsistent with each other. If both could be valid, the debtor might be compelled to pay his debt to an assignee of the mortgage, and also lose his land by execution of the power; whereas the quitclaim deed, considered merely as a release of the demandant’s title in the land, is quite consistent with his assignment of the mortgage.

We are therefore of opinion, that the tenant must claim as assignee of the mortgage, and not as purchaser under the power. And this title is sufficient to defend him against the demandant, unless Mr. Bell was charged with notice of the deed from Ebenezer Eitts to Daniel and Hannah Eitts, under which he now claims by a deed from Hannah Eitts, made after the death of Daniel Eitts, and after the demandant’s conveyance to the tenant.

Both parties. claim under E'oenezer Eitts, the demandant, under the deed to Daniel and Hannah Eitts, dated July 19, 1824, recorded April 25, 1836 ; the tenant, under the mortgage to James Bell, the demandant, dated and recorded, March 29, 1834. The tenant’s title, being under the deed first recorded, he will hold the land, unless Mr. Bell, when he took his mortgage, was charged with such notice of the prior unregistered deed, as would make it a fraud in him to set up his legal title against the equitable estate derived under the prior deed. The case does not find actual notice. Eor constructive notice the demandant relies, first on a reference in his mortgage deed to a former mortgage made by Eitts to the Exeter Bank; and, in the second place, on the possession of Daniel Eitts under the unrecorded deed to him and his wife.

The language of the statute is express, that no deed shall be valid to hold the land, unless recorded pursuant to the provisions of the act. But by a construction derived from the decisions of Equity Courts in England, if the subsequent purchaser had notice of the prior unrecorded deed, he is not allowed to set up his legal estate under the statute, to defeat the equitable title, of which he had notice at the time of his purchase ; because this would be to make a fraudulent and dishonest use of the legal advantage which the statute gave him. It is on this ground of fraud alone that evidence of notice has been admitted to control the express language of the statute.

If it were now an open question, it would at least deserve consideration, whether the fact of notice, (which is held to charge the conscience of the subsequent purchaser, and, on the ground of fraud, by an equitable construction, to defeat the clear terms of a statute,) ought to be inferred as a legal consequence from circumstances, which may, or may not, have lead to actual notice of the prior conveyance. It would seem to have been understood, as late as the time of Lord Alvanley, that “ nothing short of actual fraud would do,” and that the leading cases went upon that ground. Folland v. Stainbridge, 3 Vezey, 486; Dey v. Dunham, 2 Johns. Ch. Rep. 190. And in Jackson v. Given, 8 Johns. Rep. 137, it is treated by Kent, C. J., as a doubtful point whether “ implied notice will supply the absence of the registry of the prior conveyance.” However, that such notice may be implied in law from certain facts and circumstances must now be considered as the established doctrine in England, and the same rule has been adopted in this State. Colby v. Kenniston, 4 N. H. Rep. 262; Haddock v. Wilmarth, 5 N. H. Rep. 181.

Of late, however, courts have shown a disposition to restrain and limit the doctrine of constructive notice to clear and unquestionable cases. It is a legal inference, which the court draws as matter of law, and it is now held that it must be founded on fact and circumstances such as raise a presumption too violent to admit of being contradicted by proof. 1 Story’s Equity, 387; McMechan v. Griffing, 3 Pick. 149 ; Rogers v. Jones, 8 N. H. Rep. 264.

And in some jurisdictions legislation has interfered and overthrown the whole doctrine of constructive notice. Pomroy v. Stevens, 11 Met. Rep. 244 ; Curtis v. Mundy, 3 Ib. 405; Butler v. Stevens, 26 Maine Rep. 484.

Courts have not been able to lay down positive rules to govern these questions of constructive notice. Each case must be decided, more or less, on its own circumstances. We think a just and safe interpretation of the statute, requires the cautious and guarded application of a principle which has been admitted to control the plain language of the act. 4 Kent’s Com. 172 ; 1 Story on Equity, §§ 399, 400, and note.

The.mortgage deed, Eitts to Bell, after a general description of the premises, refers to a former mortgage in these terms: “ the said four tracts of land being fully described in a deed of mortgage, bearing date the first day of May, A. D. 1833, made by me to the president, &c., “ of the Exeter Bank, aá by reference to said deed will appear.” The deed to the Exeter Bank, conveyed four parcels of land of one hundred, fifty, eighty, and five acres respectively, and, after a description of the several parcels, adds as follows, “ part of the premises above described are subject to a lease and mortgage to Daniel Eitts, and to a lease and mortgage to Sally Fitts, Betsey Eitts, and Hannah Eitts; as by reference to the Rockingham Records will more fully appear.” '

When a party claims under a deed which states a former conveyance, the rule is laid down generally, that the party who claims under such deed is charged with notice of the prior deed, and the rule has been applied to the case of a remote deed in a long chain of title. 1 Story on Eq. § 400.

Without deciding whether the application of the rule should be extended so far, in our practice of conveyancing under the registration act, it must be considered as well established, by authority, that when the deed, by which the party took his conveyance of the land, and under which he claims, states a prior title, or refers to a prior deed, under which his title is derived, and which contains a clear and intelligible statement of a prior title, he is charged with constructive notice of that title.

Taking it to be implied, as a legal conclusion, that Mr. Bell, when he took his mortgage, knew the contents of the prior mortgage to the bank, what information did the prior mortgage give him of the unregistered deed from Ebenezer Eitts to Daniel Eitts and wife, dated July 19,1824 ?

The mortgage to the bank states that parts of the premises were subject to certain encumbrances, but does not say what parts. So far as the language used can be understood in its usual sense, we should infer that Ebenezer Eitts had given four several conveyances of the land; a deed of mortgage and a lease to Daniel Eitts, and a deed of mortgage and a lease to Sally, Betsey, and Hannah Eitts. It does not appear from the case whether the Hannah Eitts mentioned in the mortgage was the wife of Daniel Eitts, or his daughter, or some other person. No one would be likely to suppose from this description that a conveyance from Ebenezer Eitts to Daniel Eitts and his wife, for their lives and the life of the survivor, was intended. The description therefore, of itself, cannot be held to give any notice of the deed, under which the demandant claims.

Would Mr. Bell he put on such inquiries by the recital in the deed as would lead him necessarily to knowledge of the prior title ? The case does not find whether such encumbrances, as are mentioned in the deed to the Bank, in fact existed; that a description like this, of several different conveyances, should be put into the mortgage, when none such had ever in fact been made, must be looked upon as somewhat remarkable; and if there were such conveyances as are mentioned, the deed would give notice of them, and, of course, of no other.

Take the case however to be, that Ebenezer Eitts had in fact made no conveyance of the land but the unrecorded deed in question ; the purchaser is referred, for fuller description of these encumbrances, to the public records; but, on examination, he finds that there is no deed of the land on record. The description is thus found, on examination of the records to which he is referred by the description itself, to he erroneous and false in this important point. If we hold him to further inquiry, and suppose that he went to all the parties in succession, who are named in the mortgage as having claims on the land, and that he read or stated over to them the claims they were said to have, as set down in the mortgage, and inquired after their respective interests, they might well have answered that they had no such deeds or titles, because none such in fact existed. Such inquiries as a man of ordinary prudence would be likely to make, might or might not bring him to a knowledge of the deed. This is not sufficient to charge a party with constructive notice. We think, therefore, that the mortgage deed to the Bank contained no such description of this unregistered deed as would, of itself, amount to notice; or such as should put the purchaser upon inquiries, that must, as a legal conclusion, lead him to knowledge of the deed.

Nor does the evidence reported, show such open, visible, and exclusive possession in Daniel Fitts as will amount to constructive notice of his title. The farm, after the conveyance to Daniel and Hannah Fitts, appears to have been the general home and residence of Ebenezer Fitts. At the most, it was but a mixed and ambiguous possession in him and Daniel Fitts. The temporary absence of Ebenezer Fitts at Exeter, is quite consistent with his general ownership of the farm. The evidence shows that he provided, at least in part, for the cultivation and management of the farm during that absence. That his infirm father, whom he was bound by law to support, if he had ability, should they remain on the farm during his absence, would raise no legal presumption that the father claimed any title in the land that he had conveyed to the son ten years before.

The conclusion on the whole case is, that the verdict must be set aside, and a

New trial granted.