Reeve, J.
In this case, it was proved and agreed to,' that in 1802 the plaintiff had good title to a certain tract of land, and was in possession thereof; and at that time conveyed it by deed to Isaiah Gunn; that afterwards said Isaiah reconveyed the same to the plaintiff. On the validity of this deed, the case depended. The defendant contended that he was in possession, holding the land adversely to said Isaiah's title, at the time that said Isaiah conveyed the same, and that the deed was, therefore, void by our statute: and introduced witnesses to prove that he was thus in possession at that time.
The plaintiff then offered in evidence art instrument ¿n writing, executed by Isaiah to the plaintiff at the time that the plaintiff conveyed the land to said Isaiah, in which instrument said Isaiah stated, that he had become liable to pay a sum of money for the plaintiff, by reason of having endorsed a note for the plaintiff, and therein covenanted with the plaintiff, that if the plaintiff indemnified him from all loss, by paying the endorsed note according to the tenor thereof, he would reconvey said land to the plaintiff On the trial it was admitted that the plaintiff did not pay said note at the time it fell due, yet he did eventually indemnify said Isaiah, and thereupon Isaiah did convey said land to the plaintiff. To the admission of the aforesaid instrument the defendant objected ; which the court admitted, for the court was of opinion that this instrument rendered the estate a mortgage redeemable by the plaintiff, and that it was the duty of the mortgagee, as soón as his liability ceased, to reconvey ; that immediately upon being indemnified by the plaintiff, he had no beneficial interest in the land, and, was a mere trustee of the title for the plaintiff; that the entry of the defendant, and his adverse holding alter the mortgage was executed, could not render a reconveyance by the mortgagee, when his interest therein had ceased, illegal; which was nothing more than restoring a pledge which he had received when the event had [239]*239taken place, on the happening of which he had covenanted to restore it. That a contract perfectly lawful at the time made, as that betwixt the plaintiff and Isaiah, should be defeated by the subsequent entry of a tort-feasor, never could be contemplated by the legislature when they enacted the law on which the defendant relies. The mortgagee who is satisfied has no quarrel or claim to sell; he has no interest in good conscience in the estate. It was altogether immaterial to him, whether the defendant or plaintiff held the estate. He had no interest therein; only he held the evidence of a legal title to it, which he had bound himself to restore upon the happening of a certain event which had taken place. Surely this could not be the mischief in selling pretended titles which the law was enacted to remedy. If such a construction was to be given to the statute as would embrace this transaction, it would be attended with mischievous consequences.
If a tort-feasor should enter upon the mortgaged premises, and set up a claim to them, the mortgagor could never get a title to his land, although he should be compelled to pay the mortgagee his debt. If the entry of the wrongdoer released the mortgagor from paying the debt for which the land was pledged, until he could get a title, there would seem to be some reciprocity produced by the tort; but that is not the case; and if the mortgagee should take possession of the premises, it would furnish him with a conclusive reason never to re-convey to the mortgagor, although he was satisfied his demand; for he has nothing to do but suffer any person to oust him, and then his deed will, be illegal, and the mortgagor deprived of that evidence of title, which in good conscience he is entitled to from the mortgagee.
In the argument it was urged, that the mortgagor could, in chancery, compel the mortgagee to get possession by suit, so that he might be able to convey. No [240]*240case of this kind is to be found in the books; and hóW can it be done ? Why should the mortgagee be at the expense of bringing a suit to eject ? He has no interest in obtaining possession; and unless he suffered himself to be ousted on purpose, he has done no wrong. He is-perfectly willing to reconvey, if by law he may. There cannot be the smallest ground to contend, that a mortgagee, so circumstanced, should be obliged to embroil himself with a lawsuit to recover possession; and, of course, a tort-feasor would have it in his power to hold out the mortgagor for ever; for he, having no legal title, could never recover the premises It would seem absurd to give such effect to the tortious act of a third person. It cannot be supposed that the intention of the law was to suffer a wrongdoer, by entry, to defeat or even embarrass a fair contract made previous to the entry.
Whenever a person is a mere trustee of a title, which, in good conscience, ought to be conveyed to cestui que trust, the conveyance of that title is not within the statute, although some person should get possession of the premises holding adversely. A mortgagee, whenever he is satisfied the demand for which the land was mortgaged;, becomes a trustee of the title for the mortgagor.
If A. should contract, by a written agreement, with B. to sell to him black-acre for one thousand dollars, and to convey the same by deed within three months; in the mean time, C. enters and disseises A.; would not A., in pursuance of a fair contract, be justified in conveying to if he was willing to receive the deed ? Shall it be in the power of a wrongdoer to frustrate the honest views of A. and B.? for A., in this case, is only a trustee of a legal title. The sale was complete before, by the bargain, and not within the statute. If such a conveyance ⅛ within the statute, it puts it into the power of the man who has fairly bargained and sold his land, by agreement to convey at a future time, if he is dissatisfied with his bargain, to defeat it. By a collusive disseisin, he puts it [241]*241tíjít; of ⅛ power to convey; and if chancery could compel him to get possession; yet, the time for conveying the estate would have elapsed long before there could be any decision in chancery. On the other hand, B. is dissatisfied with his bargain, and procures C. to disseise A., and then claims, that if A. cannot convey, he is not entitled to the purchase-money; and thus the most important contracts in society are defeated by the entry of a wrongdoer. Every contract of this kind, being out of the mischief which the statute meant to remedy, is to be considered as not within the statute.
Lord Coke, when commenting upon a similar English statute, after stating that branch of the statute which declares that no person can take, promise, grant, or covenant to have any right or title of any person, in or to any lands, tenements, or hereditaments, unless such person or their ancestors, under whom they claim, have been in possession of the same by the space of one whole year, on pain of forfeiture,. &c. observes, that if a man mortgage his land, and afterwards redeem the same, he may at any time bargain, grant and contract for the land thus mortgaged; he need not have been in possession for the space of one whole year. Lord Coke
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Reeve, J.
In this case, it was proved and agreed to,' that in 1802 the plaintiff had good title to a certain tract of land, and was in possession thereof; and at that time conveyed it by deed to Isaiah Gunn; that afterwards said Isaiah reconveyed the same to the plaintiff. On the validity of this deed, the case depended. The defendant contended that he was in possession, holding the land adversely to said Isaiah's title, at the time that said Isaiah conveyed the same, and that the deed was, therefore, void by our statute: and introduced witnesses to prove that he was thus in possession at that time.
The plaintiff then offered in evidence art instrument ¿n writing, executed by Isaiah to the plaintiff at the time that the plaintiff conveyed the land to said Isaiah, in which instrument said Isaiah stated, that he had become liable to pay a sum of money for the plaintiff, by reason of having endorsed a note for the plaintiff, and therein covenanted with the plaintiff, that if the plaintiff indemnified him from all loss, by paying the endorsed note according to the tenor thereof, he would reconvey said land to the plaintiff On the trial it was admitted that the plaintiff did not pay said note at the time it fell due, yet he did eventually indemnify said Isaiah, and thereupon Isaiah did convey said land to the plaintiff. To the admission of the aforesaid instrument the defendant objected ; which the court admitted, for the court was of opinion that this instrument rendered the estate a mortgage redeemable by the plaintiff, and that it was the duty of the mortgagee, as soón as his liability ceased, to reconvey ; that immediately upon being indemnified by the plaintiff, he had no beneficial interest in the land, and, was a mere trustee of the title for the plaintiff; that the entry of the defendant, and his adverse holding alter the mortgage was executed, could not render a reconveyance by the mortgagee, when his interest therein had ceased, illegal; which was nothing more than restoring a pledge which he had received when the event had [239]*239taken place, on the happening of which he had covenanted to restore it. That a contract perfectly lawful at the time made, as that betwixt the plaintiff and Isaiah, should be defeated by the subsequent entry of a tort-feasor, never could be contemplated by the legislature when they enacted the law on which the defendant relies. The mortgagee who is satisfied has no quarrel or claim to sell; he has no interest in good conscience in the estate. It was altogether immaterial to him, whether the defendant or plaintiff held the estate. He had no interest therein; only he held the evidence of a legal title to it, which he had bound himself to restore upon the happening of a certain event which had taken place. Surely this could not be the mischief in selling pretended titles which the law was enacted to remedy. If such a construction was to be given to the statute as would embrace this transaction, it would be attended with mischievous consequences.
If a tort-feasor should enter upon the mortgaged premises, and set up a claim to them, the mortgagor could never get a title to his land, although he should be compelled to pay the mortgagee his debt. If the entry of the wrongdoer released the mortgagor from paying the debt for which the land was pledged, until he could get a title, there would seem to be some reciprocity produced by the tort; but that is not the case; and if the mortgagee should take possession of the premises, it would furnish him with a conclusive reason never to re-convey to the mortgagor, although he was satisfied his demand; for he has nothing to do but suffer any person to oust him, and then his deed will, be illegal, and the mortgagor deprived of that evidence of title, which in good conscience he is entitled to from the mortgagee.
In the argument it was urged, that the mortgagor could, in chancery, compel the mortgagee to get possession by suit, so that he might be able to convey. No [240]*240case of this kind is to be found in the books; and hóW can it be done ? Why should the mortgagee be at the expense of bringing a suit to eject ? He has no interest in obtaining possession; and unless he suffered himself to be ousted on purpose, he has done no wrong. He is-perfectly willing to reconvey, if by law he may. There cannot be the smallest ground to contend, that a mortgagee, so circumstanced, should be obliged to embroil himself with a lawsuit to recover possession; and, of course, a tort-feasor would have it in his power to hold out the mortgagor for ever; for he, having no legal title, could never recover the premises It would seem absurd to give such effect to the tortious act of a third person. It cannot be supposed that the intention of the law was to suffer a wrongdoer, by entry, to defeat or even embarrass a fair contract made previous to the entry.
Whenever a person is a mere trustee of a title, which, in good conscience, ought to be conveyed to cestui que trust, the conveyance of that title is not within the statute, although some person should get possession of the premises holding adversely. A mortgagee, whenever he is satisfied the demand for which the land was mortgaged;, becomes a trustee of the title for the mortgagor.
If A. should contract, by a written agreement, with B. to sell to him black-acre for one thousand dollars, and to convey the same by deed within three months; in the mean time, C. enters and disseises A.; would not A., in pursuance of a fair contract, be justified in conveying to if he was willing to receive the deed ? Shall it be in the power of a wrongdoer to frustrate the honest views of A. and B.? for A., in this case, is only a trustee of a legal title. The sale was complete before, by the bargain, and not within the statute. If such a conveyance ⅛ within the statute, it puts it into the power of the man who has fairly bargained and sold his land, by agreement to convey at a future time, if he is dissatisfied with his bargain, to defeat it. By a collusive disseisin, he puts it [241]*241tíjít; of ⅛ power to convey; and if chancery could compel him to get possession; yet, the time for conveying the estate would have elapsed long before there could be any decision in chancery. On the other hand, B. is dissatisfied with his bargain, and procures C. to disseise A., and then claims, that if A. cannot convey, he is not entitled to the purchase-money; and thus the most important contracts in society are defeated by the entry of a wrongdoer. Every contract of this kind, being out of the mischief which the statute meant to remedy, is to be considered as not within the statute.
Lord Coke, when commenting upon a similar English statute, after stating that branch of the statute which declares that no person can take, promise, grant, or covenant to have any right or title of any person, in or to any lands, tenements, or hereditaments, unless such person or their ancestors, under whom they claim, have been in possession of the same by the space of one whole year, on pain of forfeiture,. &c. observes, that if a man mortgage his land, and afterwards redeem the same, he may at any time bargain, grant and contract for the land thus mortgaged; he need not have been in possession for the space of one whole year. Lord Coke must have supposed a case where mortgagor and mortgagee were both ousted of possession, and that subsequent to the mortgage, and before the redemption; and if this is the case, then it is an authority to prove that the mortgagee may convey to the mortgagor; for without such deed there is no redemption. The case put supposes the mortgagor to be in possession at the time that he mortgaged; for if he was then ousted, his deed would be void. The mortgagor must have been out of possession at the time of the redemption, otherwise the case could not have been put; for no one could have ever supposed that in case a mortgagee gave a deed to mortgagor whilst he was in possession, there could have been any necessity to observe that such mortgagor might convey at any time. So, too, [242]*242the mortgagee must have been out of possession in case supposed; for it could not have occurred to any person that when the mortgagee was in possession, and gave a deed to mortgagor, on the mortgagor’s redeeming, the mortgagor could be in any hazard, if he conveyed the land to any person. To incur the danger of the statute, there must have been an adverse holding by some person. The language of that observation, when detailed at length, is, if A. mortgages to D., and C. holds against them subsequent to the mortgage, yet A., after redeeming, may convey immediately. This implies that A. may redeem; for if he could not, such transaction would be void; and ií A. may redeem, then B. may execute the conveyance of the land to him ; for without this there can be no redemption.
It is a fixed principle of the common law, that a trustee has nothing to do with the conflicting claims of his cestui gue trust and a third person. If A. delivers to B. any thing in trust, to keep in good faith, and B, so receives it, and C. claims it as his, B. has nothing to do with this claim. He may and ought to restore it to A., and although it should eventually turn out that C. was the real owner, B, will be justified in delivering the thing bailed to A.
I entertain no doubt on this subject on another ground. The statute prohibits the sale of disputed titles to real property; and on this only it operates. I think it is too late to say that mortgages, in the hands of the mortgagee, are real property. They are only considered in that point of light for the purpose of enabling the mortgagee to get into possession when he wants the benefit of his pledge. When contemplated in every other point of light, they are personal property. They will pass by a will not attested with three witnesses, because not real. They will not pass in a will by the term “ my real property,” and will pass by the terms “ all my personal property.” A mortgage will not pass by the terms “ my lands [243]*243and tenements,” unless the mortgagee has no other lands to which the words apply. The wife of a deceased mortgagee cannot be endowed in mortgaged premises, because personal. Mortgaged premises never give a right of settlement to the owner. When a woman becomes a feme covert, her mortgages are at the disposal of her husband, as much as any chose belonging to her; and a settlement upon her before marriage will operate upon her mortgages, just as it does upon all her other chases ; so that upon a dissolution of coverture by her death, they will belong to him, and on his death to his executor. The property therefore was personal; and it is not, in my mind, the least objection, that, by our usage, the conveyance is by deed, if that should be admitted to be necessary, since we have a law that requires deeds to be recorded. It would amount to nothing more than this, that there is in Connecticut one species of personal property that must be conveyed by an instrument authenticated in the same manner as when real property is conveyed ; for in one court such property is real; to create the title there it is by deed. The mode of conveyance alters not the nature of the property. If, by any law or usage, we were obliged to sell by deed a horse, that horse sold would not be real. I apprehend that our courts mean to adopt that system of jurisprudence respecting mortgages adopted in England. Certain it is, we have adopted it hitherto, as I believe, in all cases decided by the court. Not to adopt it in the present case, or any other that may arise, would be to mar the symmetry of the system.
Although a case of mortgage might arise that would be within the mischief intended to be remedied, yet that is nothing if it is personal estate. It is not difficult to imagine a case of personal property which might be in . such a situation that a conveyance of it would be within the mischief aimed at by the statute; but a conveyance of such property could not be operated upon by this* [244]*244statute, for it affects no property but real. I can consider this property as real estate for the purpose of subjecting the grantor and grantee to a penalty, when we view it in all other cases as personal estate, except in the solitary instance alluded to.
In this opinion the other judges severally concurred.
New trial not to be granted.