Allen v. Woodard

• Citation: 125 Mass. 400
• Parties: Quintus Allen v. Harding G. Woodard
• Decision Date: 21 October 1878
• Court: United States State Supreme Judicial Court of Massachusetts

125 Mass. 400

Quintus Allen v. Harding G. Woodard

Supreme Court of Massachusetts

October 21, 1878

Franklin. Contract on a promissory note payable to the order of the plaintiff, and signed by James M. Munson and the defendant.

The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts, so much of which as is necessary to the understanding of the points decided appears in the opinion.

Judgment for the plaintiff.

G. M Stearns & C. C. Conant, for the plaintiff.

A. De Wolf, (D. Aiken with him,) for the defendant.

Lord J. Endicott & Soule, JJ., absent.

OPINION

Lord, J.

Two questions have been argued in this case. The first is, it being agreed that the defendant was known by the plaintiff to have signed the note in suit as surety for one Munson, whether the plaintiff had not by his own neglect permitted certain securities, given by Munson to him at the inception of the note, to be so lost and rendered unavailable to himself or to the defendant, as surety for Munson, as to entitle the defendant to have deducted from the amount of his liability the value of such securities so said to be lost.

The ground upon which the defendant bases his claim is this: Munson gave to the plaintiff, as additional security, a mortgage of a parcel of land, describing it by metes and bounds, "containing about six acres, more or less, with the factory buildings standing thereon, with the water-wheel, shafting, belting, machinery, tools and fixtures, contained in said buildings, to have and to hold to him, his heirs and assigns." This mortgage was duly recorded in the registry of deeds, and nowhere else. The defendant contends that it was a mortgage of personal property as well as of real estate, and should have been recorded in the office of the clerk of the town, as a mortgage of personal property: that the personal property referred to in the mortgage was subsequently mortgaged to another party as personal property; and that such mortgage was properly recorded, and the mortgagee was entitled to, and did sell such personal property, by means of which the defendant was deprived of the benefit of it in the reduction of his note; and that, if he pays the note, he cannot now be subrogated to the rights of the plaintiff in such property.

The question, therefore, first presented is, whether or not this instrument is a mortgage of personal property. To determine this, it is proper to look at the entire contents of the instrument. Taking the entire instrument, it will be seen that in form and substance it is a mortgage of real estate, that it is a grant to the grantee and his heirs, and that it contains covenants, not personal only, but covenants which run with the land, with the usual habendum in conveyances of real estate. So far, therefore, as the form is concerned, it is that of a deed of real estate. It becomes necessary, then, to inquire whether there is any language in the instrument which indicates that the parties intended to make the instrument an instrument of conveyance of personal property, in addition to the plain, obvious and primary purpose of a conveyance of real estate in mortgage.

In order to determine this question correctly, it is necessary to look with care at the precise language used, that we may see whether it is the natural and apt language to describe all such property as passes with the land, or whether it is intended to incorporate into the well known form of conveyance another new and substantial contract between the parties, of a different character. The words used are "with the factory buildings thereon standing, with the water-wheel, shafting, belting, machinery, tools and fixtures, contained in said building." There is...