Blaney v. Bearce

• Decision Date: 01 October 1822
• Citation: 2 Me. 132
• Parties: BLANEY v. BEARCE
• Court: Maine Supreme Court

2 Me. 132

BLANEY v. BEARCE

Supreme Judicial Court of Maine, Lincoln

October, 1822

[Syllabus Material]

TRESPASS quare clausum fregit. The defendant pleaded soil and freehold in himself, which was traversed, and issue taken thereon.

The defendant offered in evidence a deed from the plaintiff to Samuel Woods, dated July 14, 1819, conveying the locus in quo, with general warranty; --and an assignment on the back of said deed dated November 7, 1821, by which the said Woods assigned to the defendant all his estate in the premises together with a note of hand for $ 2,800 given by Blaney to him dated July 15, 1819,--subject however to a bond given by Woods to Blaney dated July 15, 1819, binding himself to convey the premises to Blaney upon payment of the amount of the note.

The plaintiff then read in evidence the bond aforesaid, which it was agreed was executed at the same time with the deed from Blaney to Woods,--the condition of which set forth that whereas Woods had on that day bargained and sold to Blaney the land in question, and Blaney had in consideration thereof given to Woods his note of hand for $ 2,800 payable in one year, therefore if after the payment of the said note, and within eighteen months from the date of the bond, Woods should, upon request, convey the premises to Blaney, and also permit Blaney peaceably to receive and take to his own use the rents and profits of the premises and every part thereof until such conveyance, then the obligation to be void

Upon this evidence the Judge who presided at the trial, intending to reserve the questions of law arising in the case for the consideration of the whole Court, directed a verdict to be returned for nominal damages for the plaintiff, which was to stand if, in the opinion of the Court, the action was maintainable, otherwise to be set aside.

Verdict set aside, and new trial granted.

Bailey, for the defendant.

The intent of the parties so far as it can be collected from the evidence in the case, was to give Woods the best possible security for his debt, by a conveyance absolute in its terms. The bond for reconveyance was probably dated subsequent to the deed, for the express purpose of avoiding its operation as a defeasance. And it contains in itself no apt words either of defeasance or of conveyance; but is merely an engagement to execute a deed upon payment of the purchase-money. The title therefore being absolute in Woods and by him assigned to the defendant, his entry was lawful, he being the owner of the soil.

Allen, for the plaintiff.

The plea having admitted the possession to be in the plaintiff, the question is upon the title of the defendant to the freehold. In the instrument of July 15, Woods declares that he " has this day bargained and sold" the premises to Blaney, and stipulates for his quiet pernancy of the rents and profits. By the words " bargained and sold" the estate passed from Woods to Blaney, subject to be defeated on Woods' cancelling the note, or tendering it to him when the day of payment should arrive. Jackson v. Smith, 10 Johns. 456. 11 Johns 498. And the negotiable note given by Blaney, was sufficient consideration for the conveyance.

But if the estate was not reconveyed by Woods to Blaney, then the latter never parted with his whole estate, but the transaction is to be taken as a mortgage to Woods to secure the payment of his debt, in which case the freehold is in the mortgagor till entry for condition broken. It has never been decided by our Courts that the fee is in the mortgagee till such entry, pursuant to our statute, or till entry under a writ of possession, for foreclosure. Prior to this period the relation of the parties is merely that of debtor and creditor. The debt is the principal thing, the mortgage only a security for its payment. The reading of the late Judge Trowbridge to the contrary must be considered as controled by the subsequent statute of 1788, ch. 51. If the law were otherwise, the mortgagee might ruin the pledge. If he can cut trees he may cut all the trees on the land, and even remove the buildings, without remedy; --for we have no Court with power to grant an injunction to stay waste; and an action of the case in the nature of waste may be fruitless, it the mortgagee be unable to respond in damages. On this point the decisions of New-York are with us. Runyon v. Mersereau, 11 Johns. 534. So in Goodwin v. Richardson, 11 Mass. 474, the mortgagee has only the right of acquiring an estate. If he had a freehold, it would go to his heirs, not to the executor; --yet the Stat. 1788, ch. 51, makes provision for the case when the mortgagee dies before having acquired seisin of the land; --and the executor, and not the heir, may release the land, on payment of the money, and may recover seisin by process of law, as though the testator had died seised of the land, for the purpose of making sale for payment of his debts. If the fee were in the mortgagee, his widow would be entitled to dower in the premises,--and it might be taken for his debts. Yet the reverse of this is the settled law. Blanchard v. Coburn, 16 Mass. 345. His interest in the property may be transferred by delivery over of the note and deed; and therefore it is but a chattel. Green v. Hart, 1 Johns. 580. Rex v. St. Michaels, Doug. 632. So it is the interest of the mortgagor that gives him a settlement as a freeholder. The mortgagee gains no settlement by his mortgage. Groton v. Boxborough, 6 Mass. 52. Nor is it necessary that the rights of the mortgagee should be thus extended,--for he may always enter for condition broken; or before breach, by process of law; --but if the estate be a pledge for security of the debt, it ought not to be in his power to destroy it.

Wilson, in reply.

The law on this subject is well settled in Massachusetts in Shaw v. Loud, 12 Mass. 447, and some other decisions, that the freehold is in the mortgagee. And these cases must govern, notwithstanding the decisions in other States, because they form part of the common law of Maine, and are founded on statutes which are copied into our own code. The only case cited from Massachusetts to the contrary, was not between parties or privies to the deed of mortgage; --and it is conceded and settled that as against strangers, the mortgagor may have rights, which he cannot claim against the mortgagee.

OPINION

MELLEN, C. J.

The only question put in issue by the pleadings in this case is, whether, at the time of the alleged trespass, the soil and freehold of the locus in quo was in the defendant as he has stated in his plea in bar.

In order to decide this question, it seems necessary to examine several points which have been made in the argument.

The defendant relies on the deed from Blaney to Woods, dated July 14, 1819, and on the deed of assignment from Woods to the defendant, dated November 7, 1821, as proof of his title.

The plaintiff relies on the instrument bearing date July 15, 1819, and signed by Woods, which is in the form of a bond with a condition.--The plaintiff's counsel contends that this instrument contains language amounting to a grant of the locus in quo from Woods to Blaney.--The expression in the instrument alluded to is in these words. " Whereas the above named Woods has this day bargained and sold unto the above-named Blaney a certain farm," & c describing the before mentioned premises. It is urged that this reconveys the premises to Blaney, and proves the issue on his part. We are well...