Gorham's Adm'r v. Meacham's Adm'r

• Decision Date: 31 August 1891
• Citation: 22 A. 572,63 Vt. 231
• Parties: GORHAM'S ADM'R v. MEACHAM'S ADM'R.
• Court: Vermont Supreme Court

22 A. 572

63 Vt. 231

GORHAM'S ADM'R

v. MEACHAM'S ADM'R.

Supreme Court of Vermont. Rutland.

Aug. 31, 1891.

Appeal from chancery court, Rutland county; Taft, Chancellor.

Bill by A. W. Gorham, administrator of the estate of Angeline W. Gorham, against R. S. Meacham's administrator, to foreclose a mortgage. Bill dismissed. Orator appeals. Affirmed.

Geo. E. Lawrence, for orator.

J. C. Baker, for defendant.

TYLER, J. The following facts are reported: Rollins S. Meacham, in his lifetime, was administrator with the will annexed of the estate of Angeline W. Gorham, and became largely indebted to the estate for moneys that had come into his hands as such administrator. For the purpose of securing the estate for this indebtedness, on March 1, 1889, he made and executed a promissory note for $1,550, payable to himself as administrator on demand, and in like manner a mortgage of his home place, conditioned for the payment of the note. He never settled the estate, nor rendered any account to the probate court. He converted the assets into money, and appropriated it to his own use in his private business. At the time the note and mortgage were executed, and at his decease, he was indebted to the estate to the amount of $7,000, and was insolvent. His debts, besides what he owed the estate, amounted to about $9,000, and his assets to about $4,000. The note and mortgage were retained by him, and were found after his decease in his safe among other papers that belonged to the estate, and among certain deeds and mortgages of his own. He died November 17, 1889. His wife was the daughter of the testatrix, and is the only person Interested in her estate. After Meacham's decease, the defendant, as his administrator, handed the note and mortgage to Burditt, after the latter's appointment as administrator upon the estate of Mrs. Gorham, and Burditt caused the mortgage to be recorded in the town-clerk's office. The question is as to its validity.

The mortgage must be held invalid for want of contracting parties. A contract necessarily implies a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise. One person cannot by his promise confer a right against himself until the person to whom the promise is made has accepted the same. Until the concurrence of the two minds, there is no contract; there is merely an offer which the promisor may at any time retract. Chitty, Cont. 9, quoting Poth. Obi. It is essential to the validity of a deed that there be proper parties,—a person able to contract, and a person able to be contracted with. 8 Washb. Real Prop. 217. To uphold this mortgage, we must say that there may be two distinct persons in one; for in law the mortgagor and mortgagee are identical. The addition of the words "executor of A. W. Gorham's estate" does not change the legal effect of the grant, which is to Meacham in his individual capacity. In 3 Washb. Real Prop. 279, it is said that a grant to A., B., and C., trustees of a society named, their heirs, etc., is a grant to them individually; and Austin v. Shaw, 10 Allen, 552; To war v. Hale, 46 Barb. 361; Brown v. Combs, 29 N. J. Law, 36,—are cited. In this case the grant and the habendum are not to the estate and its legal representatives, but to Meacham, executor, his heirs and assigns. Meacham had misappropriated the funds of the estate, and no one but himself assented to his giving a note and mortgage for the purpose of partially covering his default.

2. The mortgage was not delivered. An actual manual delivery of a deed or mortgage is not necessary. If it has been so disposed of as to evince clearly the intention of the parties that it should take effect as a conveyance, it is a sufficient delivery. Orr v. Clark, 62 Vt. 136, 19 Atl. Rep. 929. Whether it has been so disposed of or not depends upon the facts of a given case. In Elmore v. Marks, 39 Vt. 538, the orator was indebted to Marks, and for the purpose of security made and executed to him a deed of certain land, and carried it to the town-clerk's office to be filed, but not recorded, and to be returned to him when his indebtedness to Marks should be paid. Through inadvertence, the deed was recorded, and the orator took it into his possession. It was never delivered to Marks, and he had no knowledge of it until several months...