Creeden v. Mahoney

• Decision Date: 02 January 1907
• Citation: 193 Mass. 402,79 N.E. 776
• Parties: CREEDEN v. MAHONEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 402

79 N.E. 776

CREEDEN v. MAHONEY.

Supreme Judicial Court of Massachusetts, Essex.

January 2, 1907

COUNSEL

Horace I. Bartlett and Arthur Withington, for appellant.

Casey & Jones and E. Foss, for appellee.

OPINION

BRALEY J.

The plaintiff rests his claim to equitable relief upon the ground that the deed not having been delivered the defendant never became seised of the land, and the principal averments of the bill are, that for his own advantage he caused the deed to be made and recorded to enable the defendant to execute a mortgage of the land, which accordingly was done. If the making, recording, and subsequent retention of the deed by the grantor are acts consistent with his continued ownership it is settled that manual delivery of the instrument is not required to work a transfer, for acts of the grantee showing acceptance, when coupled with a purpose of the grantor to treat the deed as delivered, are sufficient to pass the title. Harrison v. Trustees of Phillips Academy, 12 Mass. 456, 460; Hedge v. Drew, 12 Pick. 141, 22 Am Dec. 416; Mills v. Gore, 20 Pick. 28, 38; Regan v. Howe, 121 Mass. 424, 426; Snow v. Orleans, 126 Mass. 453, 457; Meigs v. Dexter, 172 Mass. 217 52 N.E. 75. The express object of the conveyance was to invest the defendant with authority to convey the fee in mortgage, and the deed could not be effectual for this purpose, and immediately thereafter become inoperative, for if the defendant once became seised his seisen was not terminated by the execution of the mortgage. Upon its face with the knowledge of the plaintiff, the mortgage purported to be the sealed instrument of the defendant, presumably with the usual covenants of warranty, and the acts of the plaintiff in placing the deed upon record, and then asking for the making, execution and delivery of the mortgage were concurrent. The plaintiff's case then must rest upon one of two theories, either the act of the defendant in mortgaging the property was intended to be purely that of a volunteer without any legal title, or the making and recording of the deed was for the express purpose of enabling him to give a valid mortgage. It is not to be presumed that the plaintiff intended to perpetrate a fraud upon the mortgagee by causing it to appear of record that the defendant was the owner, when in fact the title had not passed, even if under Rev. Laws, c. 127, § 5, as between himself and the mortgagee the mortgage would have been valid. Stiff v. Ashton, 155 Mass. 130, 133, 29 N.E. 203. The statute is intended to protect an innocent mortgagee who deals with the apparent owner of record, although subsequently it appears...