WOODBURY, Circuit Justice.
Several of the facts in this case, which are sufficient to dispose of it. seem but little controverted; and the chief difficulty is in respect to the law. The original owner of the mortgaged premises appears never to have been ejected from them; and in a suit at law against him by the complainant to recover the three acre piece, which is now in contest, his rights, if any, as against the complainant, can be fully settled; and in a like manner can those of Rangeley be, should he ever obtain possession under the suit which, by his answer it seems, he has already commenced against Spring. Why should this court then interfere, when the rights of the parties can fully be adjusted at law? Calverley v. Williams, 1 Ves. Jr. 210, 213. No mistake is averred, nor any fraud, nor misrepresentation on the part of the respondent. It is true, that a disclosure has been asked on certain points; but this has been obtained; and hence, so far as the bill may be regarded as brought for discovery, its purpose has already been answered. Nor is it here a good ground for application to us, that the complainant fears, quia timet, being disturbed by the respondent, and hence brings a bill of peace. He must first have been in possession, or have shown a better title than the respondent, or a defect in some deed asked to be given up, in order generally to justify such an application. Story, Eq. Jur. § 703 et seq.; Hamilton v. Cummings, 1 Johns. Ch. 517, 523; Devonsher v. Newenham, 2 Schoales & L. 199, 208. But considering this doubtful, were we to go at length into the other prayers of the bill, it would be difficult to find sufficient ground for granting them in any equities of the case, that are clearly established. The original mortgage to the bank embraced the three acre piece as a part of its security. The entry to foreclose, by the agent of the bank, was evidently intended to cover that piece, as well as the rest of the mortgaged premises. According to several cases, such an entry on one piece is good for all in possession of the party within the same county whenever it is so intended. Co. Litt. 253a; Green v. Liter, 8 Cranch [12 U. S.] 229. 250; Stearns. Real Act. 45; Thayer v. Smith. 17 Mass. 429, 431. It was treated like the rest in the subsequent deed of it with the rest to Webster. And it would not answer in equity to let the complainant, who stands in Ether Shepley's shoes, as his grantee, and by agreement seeks no greater rights than his grantor would have, or stands open to all the equities and law, that exist against Ether Shepley, set up in behalf of himself, that his entry for the whole, as agent for the bank, and his writing a deed for the whole to Webster, and taking the acknowledgment of it for the whole, ought now to be considered as operative only for a part. If parties, claiming an interest in lands, look on and see it conveyed, or take part in the transaction without complaint or objection, they are usually estopped in equity from after-wards setting up a title against the grantees and those holding under them. This rule rests rather on the tendency of such conduct to mislead, than on any deceit actually intended, or actually practised in each case. 1 Story. Eq. Jur. § 3S5: Hatch v. Kimball, 16 Me. 146; The Sarah Ann [Case No. 12,342]; [1166]*11662 Cow. 246. The rule is similar now at law in sales of personal property. 1 Story, Eq. Jur. § 3-5. See a strong ease in Thompson v. Sanborn, 11 N. H. 201, and eases there cited; 2 Kent, Comm. 4S3, note (“qui taeet, consentiré videtur”); 1 Johns. Ch. 354; 12 Ves. 85; and other cases cited in Kent, Comm.
In the present instance no design whatever appears to have existed to defraud, but the omission to set up a claim to the three acre piece, or give notice of an hostile interest in it, ■ arose probably from forgetfulness. If we look into the general features of the transaction, independent of this objection, the equities of the case favor the title of the respondent rather than the complainant. Provided no decisive principle stands in the way, it is manifestly proper, that the conveyance by the bank to Webster should be construed according to the real intent of the parties in interest in making it. Wade v. Howard, 11 Pick. 289. The trustees of the bank evidently knew that Spring understood and expected that the mortgage should not be considered as foreclosed, so as to prevent him from obtaining the premises from the bank on paying the amount due at the time the check became payable. And on the other hand, the trustees were willing to accede to this, so far as they might, without relinquishing any advantage and security for their debt, which they had obtained. In order to accomplish safely both of these en«£, the parties might be considered as agreeing in substance to the foreclosure of the mortgage, for the stronger security of the bank, because actual payment had not been made; but at the same time agreeing further to a conveyance of the premises to Spring or any of his creditors, who might complete the. payment of the mortgaged debt as soon as the check should fall due. It would be unjust to treat the transaction as a payment and a mere discharge of the mortgage. Willard v. Harvey, 5 N. H. 252. Because that would strip Webster, who advanced most of the money of all security for it; and it would do this also against the clear intent of Spring, the mortgagor, who not only procured a conveyance of the premises to be made to Webster by the bank, which is inconsistent with an intent merely to discharge the mortgage, but took back a writing from Webster, stipulating to permit Spring to pay him the sum advanced at any time within three years: and then to receive back a conveyance of the premises. All this shows explicitly Spring’s intention not to have the money paid to the bank applied simply to discharge the mortgage, but rather to have the bank’s title under it conveyed to some third person. See on this Pow. Mortg. 1088: 2 Cow. 248; Gleason v. Dyke, 22 Pick. 390; Smith v. Moore. 11 N. H. 55, 62, and cases there cited; 5 N. H. 252, 430.
Under these views, it is quite clear, that the parties must in equity be regarded as intending to have an absolute estate exist in the bank, but under a stipulation that it should be conveyed to Spring or his appointee, at the 1 time the check became payable, if the money was then paid; that such an estate was conveyed to Webster by the bank, he being properly selected by Spring to receive the conveyance on account of his having advanced most of the money, and that Webster thenceforward held an absolute estate, and not an assignment merely of a mortgage. James v. Johnson, 6 John. Ch. 417. It was not an assignment of the mortgage merely, for other reasons, because it had become foreclosed, and must be so considered in order to enforce the views of the parties, and the equities of the case. Nor does it purport to be a mere assignment, as the note and mortgage .deed were given up to Spring rather than transferred to Webster, — he getting a conveyance of the premises only. Had he been a mere assignee of the mortgage, the respondent’s extent on his interest would probably be irregular and invalid, and hence of no avail. Blanchard v. Colburn, 16 Mass. 345; Eaton v. Whiting, 3 Pick. 484. So if Webster's writing executed to Spring could have converted the title he acquired into a mortgage, no legal interest, that could be extended on, remained in him. But Webster’s writing to Spring was not sealed, nor given the same day with the deed; nor was it an agreement between the parties to the deed. And this would prevent it from being what it otherwise might be, a defeasance, and the deed coupled with it a mortgage on its face. Wendell v. New Hampshire Bank, 9 N. H. 404.
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WOODBURY, Circuit Justice.
Several of the facts in this case, which are sufficient to dispose of it. seem but little controverted; and the chief difficulty is in respect to the law. The original owner of the mortgaged premises appears never to have been ejected from them; and in a suit at law against him by the complainant to recover the three acre piece, which is now in contest, his rights, if any, as against the complainant, can be fully settled; and in a like manner can those of Rangeley be, should he ever obtain possession under the suit which, by his answer it seems, he has already commenced against Spring. Why should this court then interfere, when the rights of the parties can fully be adjusted at law? Calverley v. Williams, 1 Ves. Jr. 210, 213. No mistake is averred, nor any fraud, nor misrepresentation on the part of the respondent. It is true, that a disclosure has been asked on certain points; but this has been obtained; and hence, so far as the bill may be regarded as brought for discovery, its purpose has already been answered. Nor is it here a good ground for application to us, that the complainant fears, quia timet, being disturbed by the respondent, and hence brings a bill of peace. He must first have been in possession, or have shown a better title than the respondent, or a defect in some deed asked to be given up, in order generally to justify such an application. Story, Eq. Jur. § 703 et seq.; Hamilton v. Cummings, 1 Johns. Ch. 517, 523; Devonsher v. Newenham, 2 Schoales & L. 199, 208. But considering this doubtful, were we to go at length into the other prayers of the bill, it would be difficult to find sufficient ground for granting them in any equities of the case, that are clearly established. The original mortgage to the bank embraced the three acre piece as a part of its security. The entry to foreclose, by the agent of the bank, was evidently intended to cover that piece, as well as the rest of the mortgaged premises. According to several cases, such an entry on one piece is good for all in possession of the party within the same county whenever it is so intended. Co. Litt. 253a; Green v. Liter, 8 Cranch [12 U. S.] 229. 250; Stearns. Real Act. 45; Thayer v. Smith. 17 Mass. 429, 431. It was treated like the rest in the subsequent deed of it with the rest to Webster. And it would not answer in equity to let the complainant, who stands in Ether Shepley's shoes, as his grantee, and by agreement seeks no greater rights than his grantor would have, or stands open to all the equities and law, that exist against Ether Shepley, set up in behalf of himself, that his entry for the whole, as agent for the bank, and his writing a deed for the whole to Webster, and taking the acknowledgment of it for the whole, ought now to be considered as operative only for a part. If parties, claiming an interest in lands, look on and see it conveyed, or take part in the transaction without complaint or objection, they are usually estopped in equity from after-wards setting up a title against the grantees and those holding under them. This rule rests rather on the tendency of such conduct to mislead, than on any deceit actually intended, or actually practised in each case. 1 Story. Eq. Jur. § 3S5: Hatch v. Kimball, 16 Me. 146; The Sarah Ann [Case No. 12,342]; [1166]*11662 Cow. 246. The rule is similar now at law in sales of personal property. 1 Story, Eq. Jur. § 3-5. See a strong ease in Thompson v. Sanborn, 11 N. H. 201, and eases there cited; 2 Kent, Comm. 4S3, note (“qui taeet, consentiré videtur”); 1 Johns. Ch. 354; 12 Ves. 85; and other cases cited in Kent, Comm.
In the present instance no design whatever appears to have existed to defraud, but the omission to set up a claim to the three acre piece, or give notice of an hostile interest in it, ■ arose probably from forgetfulness. If we look into the general features of the transaction, independent of this objection, the equities of the case favor the title of the respondent rather than the complainant. Provided no decisive principle stands in the way, it is manifestly proper, that the conveyance by the bank to Webster should be construed according to the real intent of the parties in interest in making it. Wade v. Howard, 11 Pick. 289. The trustees of the bank evidently knew that Spring understood and expected that the mortgage should not be considered as foreclosed, so as to prevent him from obtaining the premises from the bank on paying the amount due at the time the check became payable. And on the other hand, the trustees were willing to accede to this, so far as they might, without relinquishing any advantage and security for their debt, which they had obtained. In order to accomplish safely both of these en«£, the parties might be considered as agreeing in substance to the foreclosure of the mortgage, for the stronger security of the bank, because actual payment had not been made; but at the same time agreeing further to a conveyance of the premises to Spring or any of his creditors, who might complete the. payment of the mortgaged debt as soon as the check should fall due. It would be unjust to treat the transaction as a payment and a mere discharge of the mortgage. Willard v. Harvey, 5 N. H. 252. Because that would strip Webster, who advanced most of the money of all security for it; and it would do this also against the clear intent of Spring, the mortgagor, who not only procured a conveyance of the premises to be made to Webster by the bank, which is inconsistent with an intent merely to discharge the mortgage, but took back a writing from Webster, stipulating to permit Spring to pay him the sum advanced at any time within three years: and then to receive back a conveyance of the premises. All this shows explicitly Spring’s intention not to have the money paid to the bank applied simply to discharge the mortgage, but rather to have the bank’s title under it conveyed to some third person. See on this Pow. Mortg. 1088: 2 Cow. 248; Gleason v. Dyke, 22 Pick. 390; Smith v. Moore. 11 N. H. 55, 62, and cases there cited; 5 N. H. 252, 430.
Under these views, it is quite clear, that the parties must in equity be regarded as intending to have an absolute estate exist in the bank, but under a stipulation that it should be conveyed to Spring or his appointee, at the 1 time the check became payable, if the money was then paid; that such an estate was conveyed to Webster by the bank, he being properly selected by Spring to receive the conveyance on account of his having advanced most of the money, and that Webster thenceforward held an absolute estate, and not an assignment merely of a mortgage. James v. Johnson, 6 John. Ch. 417. It was not an assignment of the mortgage merely, for other reasons, because it had become foreclosed, and must be so considered in order to enforce the views of the parties, and the equities of the case. Nor does it purport to be a mere assignment, as the note and mortgage .deed were given up to Spring rather than transferred to Webster, — he getting a conveyance of the premises only. Had he been a mere assignee of the mortgage, the respondent’s extent on his interest would probably be irregular and invalid, and hence of no avail. Blanchard v. Colburn, 16 Mass. 345; Eaton v. Whiting, 3 Pick. 484. So if Webster's writing executed to Spring could have converted the title he acquired into a mortgage, no legal interest, that could be extended on, remained in him. But Webster’s writing to Spring was not sealed, nor given the same day with the deed; nor was it an agreement between the parties to the deed. And this would prevent it from being what it otherwise might be, a defeasance, and the deed coupled with it a mortgage on its face. Wendell v. New Hampshire Bank, 9 N. H. 404. It is clear, that, but for the circumstance of the writing not being between the grantor and grantee in the deed, it might be held in chancery, if Webster could sue Spring for the money, that such writing converted the deed into a mortgage. 6 Johns. Ch. 417; James v. Morey, 2 Cow. 246; Flagg v. Mann [Case No. 4,847]; 4 Kent, Comm. 141; 2 Story, Eq. Jur. § 1020; Porter v. Nelson. 4 N. H. 130; Dey v. Dunham. 2 Johns. Ch. 182, 15 Johns. 555. Possibly Spring, if he choose, might in chancery' have the land charged with a trust or mortgage. before any third person had bought or levied on the premises without notice of Spring’s claims. But as to such third person’s levying on it, or purchasing as here, without notice, the.title of Webster must be deemed an absolute one; and although the court would go far, when the rights of no third persons had intervened, to enforce a specific performance of this contract, if not to charge the land with it in trust or mortgage in case of seasonable payment by Spring or his assignee, and application for that purpose, yet this does not change the interest that passed from the bank. In Rangely v. Spring, 21 Me. 130, 137, it seems to have been settled, on a state of facts much as in this case, that a freehold estate at least has vested in Rangeley.
These conclusions seem well to protect every interest, that has been concerned in the trans-' action, whether in lending or borrowing; and do not affect unfavorably, in an equitable view, any subsequent purchasers from Spring, like Shapley. of the three acre lot. Shapley has [1167]*1167paid nothing since to entitle him to any new position, coming in, as he didr originally after the bank, and therefore should so come now. Nobody else has paid any thing in his behalf with a view to give him a new or better position. On the contrary, he has looked on in silence, and seen others perfect their prior rights; nor have thejr as yet, it is supposed, realized any thing beyond the prior debts from all the mortgaged premises. And if the evidence were less doubtful as to the value of the whole compared with the whole debt, it does not, after a foreclosure, authorize us to recaí a part of the premises as in this bill is prayed, nor to re-open the right to redeem in behalf of him, when this is not prayed for. But the proper course for the complainant, if the whole mortgaged premises near the time of the foreclosure were worth more than the debt, was to have gone forward and paid it, and got an assignment of the whole before the time expired. That would have vested an absolute estate in him of the three acre piece, if Mrs. Spring be not interested in it, and Spring could not have redeemed the rest of him without paying the whole debt. Saunders v. Frost, 6 Pick. 259. But on the case, as it now stands, we see no equity that requires us to interfere. More especially is this the case if Mrs. Spring did not join in the deed to him, provided she is interested in the three acre lot. But her rights we do not examine, as it does not become necessary for a just disposal of the case.
Bill dismissed, with costs.