5 D.C. 127 (C.C.D.C. 1837), 16,867, Van Ness v. Hyatt

Docket Nº:16,867[1]
Citation:5 D.C. 127, 28 F.Cas. 1044
Opinion Judge:CRANCH, Chief Judge.
Party Name:VAN NESS v. HYATT et al.
Attorney:R. S. Coxe, for complainant Mr. Morfit, contra
Judge Panel:MORSELL, Circuit Judge. CRANCH, Chief Judge. THRUSTON, Circuit Judge. THRUSTON, Circuit Judge, concurred. MORSELL, circuit Judge, dissented.

Page 127

5 D.C. 127 (C.C.D.C. 1837)

28 F.Cas. 1044

VAN NESS

v.

HYATT et al.

No. 16,867 [1]

Circuit Court, District of Columbia.

March 1837. [2]

         Bill in equity [by John P. Van Ness against Alpheus Hyatt, James Shields, Ann Blanchard, Charles Glover, and Jane, his wife, Mary Franks, and James Moore] to redeem a mortgage of a leasehold estate; the complainant claiming as purchaser of the equity of redemption sold under a fieri facias against Shields, the mortgagor, upon a judgment for $30.25, recovered before a justice of the peace. The cause was set for bearing on the bill, answers, general replication, and exhibits. The material facts appear to be as follows: On the 31st of December, 1818, William Cocking, being seized in fee of part of lot 12, in square 406, in the city of Washington, by indenture of that date, leased the same to the defendant, James Shields, for ten years from the 1st of January, 1819, at the rent of $35 a year, clear of taxes, & c., and to build a two-story brick house thereon within twelve months, with leave to purchase the fee-simple at the end of the ten years, by paying $375 and all arrears of rent. This lease was duly acknowledged, but was never recorded. Shields built the two-story house according to contract, and on the 23d of September, 1823, mortgaged the house and lot to the defendant, John Franks, to secure a debt of $1,129.18. On the 19th of August, 1825, Charles W. Botelor, a constable of Washington county, D. C., executed a deed to Mr. Van Ness, duly acknowledged and recorded, which recites a writ of fieri facias, stating a judgment on the 8th November, 1825, in favor of Mr. Van Ness against Shields for $28.40, and $1.27 interest and fifty-eight cents costs, commanding the constable to levy the debt, damages, and costs, ‘ of the goods, chattels, lands, and tenements' of Shields; and that the constable ‘ laid the same upon a certain lot of ground of him, the said James Shields, that is, upon the right, title, estate, interest, and claim of him, the said James Shields, therein lying and being in the city of Washington, and being part of lot No. 12, in square 406, beginning,’ & c., ‘ as the same was then occupied and held by the said Shields; ’ and on the 10th of July, 1824, exposed ‘ the said part of a lot, & c., that is, all the right, title,’ & c., to public sale to the highest bidder, and that Mr. Van Ness became the highest bidder and purchaser thereof for $54, and has paid the purchase-money to the constable, in consideration of which, and of five dollars paid, & c., the constable gives, grants, bargains and sells, transfers and assigns to Mr. Van Ness, his executors, administrators, and assigns, ‘ the said part of a lot, that is, the right, title, estate, interest, and claim of him, the said James Shields therein, so as aforesaid taken on the said writ of fieri facias, and so as aforesaid exposed to sale in virtue of said writ, with the improvements and appurtenances to the same belonging, unto the said John P. Van Ness, his executors, administrators, and assigns, and to their only proper use and behoof.’ There was no habendum in the deed. The recitals in the deed were admitted by the parties to be true, so that the judgment, execution, levy, and sale of Shield's right, the purchase by Mr. Van Ness, and the payment of the purchase-money, are admitted; provided, that such a right, as Shields then had, could be levied upon, taken, and sold, under such a fieri facias. On the 7th of May, 1825, Franks assigned his mortgage to the defendant, Alpheus Hyatt, for a full and valuable consideration; and on the 9th of May, 1825, Shields assigned to Hyatt all his equity of redemption, in consideration of $200. There was no evidence, that, at the time of these assignments, Hyatt had any notice or knowledge of the judgment against Shields. William Cocking died seized of the reversion in fee-simple, which descended to his two daughters, Ann Blanchard and Jane Glover, who, on the 16th of April, 1826, assigned to Hyatt all their right as heirs at law of the lessor, William Cocking, for a valuable consideration. The execution recites, that ‘ whereas on the 8th day of November, 1823, a certain John P. Van Ness, by the judgment of _____ recovered against a certain James Shields, the sum of $28.41, debt, & c., which judgment was superseded by one James B. Holmead,’ the constable was commanded that of the goods and chattels, lands and tenements of the said James Shields, and James B. Holmead, he should cause to be levied the debt, & c. The levying of the execution, and the sale under it, being before the assignment of the equity of redemption by Shields to Hyatt, there was nothing left for the assignment to operate upon, if that equity was lawfully levied upon, and sold under the execution; and that is the principle question in the case.

         R. S. Coxe, for complainant, cited the following authorities: Rex v. Inhabitants of St. Michael, 2 Doug. 630; M'Call v. Lenox, 9 Serg. & R. 312; Jackson v. Hull, 10 Johns. 481; Monell v. Lawrence, 12 Johns. 521, 529; Waters v. Stewart, Caines, Cas. 47; Wilson v. Troup, 2 Cow. 230; Hitchcock v. Harrington, 6 Johns. 294; Inhabitants of Groton v. Inhabitants of Boxborough, 6 Mass. 50; Bolton v. Ballard, 13 Mass. 229; Town of Barkhamsted v. Town of Farmington, 2 Conn. 600; Collins v. Torry, 7 Johns. 278; Runnyan v. Mersereau, 11 Johns. 538; Jackson v. Dickenson, 15 Johns. 309; Coles v. Coles, Id. 319; Titus v. Neilson, 5 Johns. Ch. 452; 5 Gwill. Bac. Abr. 16, tit. ‘ Mortgage,’ c; Harrison v. Eldridge, 2 Halst. [7 N. J. Law] 392; Casborne v. Scarfe, 1 Atk. 603; 2 Fonb. 262, note; Jackson v. Willard, 4 Johns. 41; D'Arcy v. Blake, 2 Schoales & L. 387; Jackson v. Bronson, 19 Johns. 326; Campbell v. Pratt, 9 Cranch (13 U. S.) 459.

         Mr. Morfit, contra, cited Harding v. Stevenson, 6 Har. & J. 267; Warren v. Childs, 11 Mass. 226; Metcalf v. Scholey, 2 Bos. & P. (N. R.) 461; Wilkes v. Ferris, 5 Johns. 335, 343; Scott v. Scholey, 8 East, 467; Shirley v. Watts, 3 Atk. 200; Burden v. Kennedy, Id. 739; Lyster v. Dolland, 3 Brown, Ch. 480, and 1 Ves. Jr. 431; Warren v. Howe, 3 Dowl. & R. 494, 2 Barn. & C. 281; Cadogan v. Kennet, Cowp. 432; Plunket v. Penson, 2 Atk. 292; Cox's Case, 3 P. Wms. 342; Cattel v. Warwick, 1 Halst. [6 N. J. Law] 192; St. Mass. March 1, 1799; State v. Laval, 4 McCord, 341; Reads v. Symmes, Ohio Cond. R. 141; Phelps v. Butler, Id. 331; Denton v. Livingston, 9 Johns. 99, 100; Bogart v. Perry, 1 Johns. Ch. 56, 57; Davis v. Maynard, 9 Mass. 242; Punderson v. Brown, 1 Day 93; Scripture v. Johnson, 3 Conn. 211; Boring v. Lemmon, 5 Har. & J. 223; Perry v. Coates, 9 Mass. 537; Maine Fire & Marine Ins. Co. v. Weeks, 7 Mass. 438; Ingalls v. Lord, 1 Cow. 240; Com. Dig. ‘ Execution,’ C, 4; Picquet v. Swann [Case No. 11,133]; Bac. Abr. ‘ Execution,’ C, 4.

         CRANCH, Chief Judge.

         The first question which presents itself, is: 1. Did any and what legal estate pass from Cocking to Shields, by the lease of December 31, 1818, purporting to be a lease for ten years, but not recorded. By the Maryland act of 1766 (chapter 14, § 2) it is enacted, that ‘ no estate of inheritance or freehold, or any declaration or limitation of use, or any estate for above seven years, shall pass, or take effect, except the deed or conveyance, by which the same shall be intended to pass or take effect, shall be acknowledged,’ & c., ‘ and be also enrolled in the records of the same county,’ & c., ‘ within six months after the date of such deed or conveyance.’ At common law the lease would be good for ten years; and under the English registry acts, it would be equally good between the parties. Jones v. Gibbons, 9 Ves. 407; and the policy of the act of Maryland, 1766 (chapter 14) does not seem to require that the conveyance, as between the parties, should be void. It says that no estate for above seven years shall pass, but it does not say that an estate for seven years shall not pass by a deed purporting to be for ten years. Statutes, restricting common-law rights, should be construed strictly. The statute does not make void the deed; it only limits its operation to seven years. Deeds must be construed most strongly against the grantor. He had power to make a lease for seven years without recording it. To give this lease the same effect, is to give to the statute all the effect which is indicated by its spirit. I think, therefore, that the lease was good for seven years, and passed a legal estate to Shields for that term. His legal estate continued, therefore, until the 1st of January, 1826; or rather until the 23d of September, 1823, when he mortgaged it to Franks by an assignment of that date. After January 1, 1826, when the legal estate expired, Franks, the mortgagee, had still an equitable interest in the house and lot for the residue of the ten years, with the privilege of buying in the fee-simple at the expiration of that term by paying three hundred and seventy-five dollars, and all arrears of rent; and Shields had a right to redeem the property from Franks by paying the mortgage debt. In the meantime, however, namely, on the 7th of May, 1825, Franks had assigned his mortgage to the defendant, Hyatt, for a valuable consideration; and Shields had, on the 9th of May, 1825, assigned to Hyatt his equity of redemption; and on the 16th of April, 1826, Hyatt purchased the reversion in fee from the heirs of Mr. Cocking; so that Hyatt obtained a complete title in fee, unless intercepted by the fieri facias and sale, in the suit of Van Ness v. Shields. That sale was made on the 10th of July, 1824, before Franks and Shields had assigned their respective rights to Mr. Hyatt. Under that sale Mr. Van Ness claims to be clothed with all the rights which Shields had, on that day. What were they? His right of redemption, namely, to redeem the residue of the term which had, at most, only five and a half years to run. This...

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