Porter v. Nelson

4 N.H. 130

• Court: Superior Court of New Hampshire
• Decided: May 15, 1827
• Status: Published

Opinion

Richardson, C. J.

The plaintilfin this case contends that the deed of Turner which was assigned to the defendant was a mortgage, and as this is denied by the de-' Cendant, we shall in the first place examine the nature of that instrument.

It has been said that it may be laid down as a general rule and subject to very few exceptions, that wherever a conveyance or assignment of an estate is originally intended as a security for money, whether this intention appears from the deed itself or by any other instrument, it is always considered in equity as a mortgage and redeemable. Coke Litt. 205, a. note 96; Cases Temp. Talbot, 61, Cotterell v. Purchase; 2 Caine’s cases, 200, Cortelyou v. Lansing; 4 Mass. Rep. 443, Kelleran v. Brown.

When land is put in pledge upon condition for the payment of money it is a mortgage. Litt. sec. 332; 2 Cowen, 334, Clark v. Henry; 2 Fonbl. 251—284 Com. Dig. “Chancery” 4 A 1, 2, & 3; Equity cases, ab. 310—320; 2 Ventris, 364, Benham v. Newcomb; 1 P. Wills. 291, Howell v. Price, and 268, Floyer v. Lavington; 3 Mass. Rep. 138, Newhall v. Wright; 2 Mass. Rep. 493, Erskine v. Townsend.

There are conveyances which would be considered in a court of equity as mortgages, but which cannot under our statute be so considered in this state. Thus in chancery, a convey ance of land absolute in terms, if intended as a security for a debt by the parties is a mortgage, whether the intention is manifested by. a written de-feasance executed at the time of the conveyance, or by parol declaration, or acts of the parties. 2 Cowen, 324, Clark v. Henry.

But in this state -what is to be considered as a mortgage, and when land conveyed can be redeemed, depends upon our statute of February 16, 1791, which enacts “that all real estate conveyed or pledged by mortgage, or deed of bargain and sale with defeasance, may be redeemed by the mortgagor or vendor, his heirs, &c. on payment of all the sums of money, to secure the payment of which such mortgage or deed was made agreeably to the tenor and effect of the condition in such mortgage contained, or in such writing of defeasance expressed, or on performance of the condition on which such real estate was mortgaged or conveyed.” It has been decided that there can be no mortgage within the intent of this clause in the statute, unless the condition be in the deed, of conveyance, or in some other instrument under seal, and taking effect at the time of the conveyance. 1 N. H. Rep. 39, Lund v. Lund, And we are of opinion that no conveyance can be considered as a mortgage, within the meaning of the statute, unless the real estate be put in pledge by it, on.condition for the payment of money, or the doing of some other act. The statute extends only to cases where lands are “ conveyed” by mortgage, or “ pledged” by deed of bargain and sale with defeasance.

In this case the deed from Turner to Porter does not, On the face of it, indicate a mortgage. No mention is made of any debt, obligation, or security. The deed shows nothing more than a conditional sale by Turner. When we look further to the deed from Porter to Turner, the two deeds taken together do not indicate a mortgage ; but a conditional purchase by Turner. And the evidence introduced shows clearly that this was the fact. Turner was the mere agent of Porter to sell the land, and was to have for his trouble what he could obtain above $2000. There was no debt due from Turner to Porter for which the land was put in pledge. Turner had undertaken to do no act for the performance of which the land was mortgaged. The particular mode of conveyance which was adopted, was intended to enable Turner to sell the land as the agent of Porter, and receive for his trouble what he could obtain above a fixed sum. By the agreement Turner was to be the purchaser in case he could sell, and in that case alone, ft therefore seems to ns to be exceedingly clear that the deed from Turner to Porter was not a mortgage. 8 Mass. Rep. 568; Cro. James, 281; Yelverton, 206.

But it is further said oil the part of the plaintiff, that, the defendant is estopped by the deed of assignment and his subsequent acts, to say that the deed from Turner to Porter was not a mortgage.

Upon examining the deed on which the plaintiff relies as an estoppel, it appears that a certain farm is granted, bargained, and sold to Nelson, which is described as “ the same premises mentioned in the mortgage deed,” and Nelson is to hold in as ample manner as Porter might hold, “ by virtue of the mortgage deed aforesaid,” and is authorized to receive to his own use the sum or sums mentioned in the condition “of said mortgage deed.” Now it is very obvious that the terms “ mortgage deed” are used in each of these instances as merely descriptive of the instrument, and we are clearly of opinion that the defendant is not estopped by this mistaken description of the instrument; and the case of Skipworth v. Green, 2 Mod. Cases, 312; 1 Strange, 610, is strongly in point ; which was covenant upon an indenture by which the plaintiff demised to the defendant two meadows, called Laine’s meadows, and the defendant covenanted to pay five pounds for every acre of meadow which he should plough, and the breach assigned was in ploughing up Laine’s meadow. The defendant pleaded that Laine’s meadow was arable land, and not meadow, and to this the plaiidilf demurred. The court were of opinion that it would be carrying the doctrine of estoppels too far to extend them to such a ease, and held that the defendant had a right to try the fact whether it were meadow or not.

And we are of opinion that the defendant cannot be precluded by the acts of his, stated in the case, from saying that the said deed from Turner to the plaintiff was not a mortgage. He seems to have acted under a misapprehension of its nature, but a mistake of this kind is no estoppel. If he had contracted specially to procure a judgment as on a mortgage, he might have been bound by the contract. But no such contract is shown.

As the said deed was not a mortgage, the judgment taken had all the effect which a judgment as on a mortgage could have had. A simple demand of the money and a refusal to pay on the part of Turner would have extinguished his claim as effectually as a year’s possession under a judgment as on a mortgage.

We are therefore of opinion that there must be

Judgment on the nonsuit.