Lanigan v. Sweany

• Decision Date: 26 April 1890
• Parties: LANIGAN v. SWEANY
• Court: Arkansas Supreme Court

13 S.W. 740

53 Ark. 185

LANIGAN v. SWEANY

Supreme Court of Arkansas

April 26, 1890

APPEAL from Sebastian Circuit Court in Chancery, Fort Smith District, GEORGE A. GRACE, Special Judge.

Judgment reversed and cause dismissed.

J. M Moore for appellants.

Contended 1. That the deed executed by Dell was an efficient means of executing the power contained in the mortgage, if such was the intent. 2. That the intent to execute the power may be manifested, and will be presumed, when the instrument cannot have full operation and effect otherwise than as an execution of the power. 3. That the estate conveyed and the convenants contained in the deed were not supported by, and were not consistent with, any interest which Dell had in the property and could only be fed by the power. 4. That all the parties connected with the transaction understood and treated it as a conveyance of the estate and not as an assignment of the debt, and, 5. That the deed was not the usual, appropriate or efficient means of assigning the debt. 1 DeG. & J., 535; Jones on Mortg., secs. 826, 1785-87; Sugden on Powers, ch. 6 sec. 8; 1 Story, 445; 33 N.Y. 387; 109 U.S. 357; 2 Sugd., Powers (7th Lond. ed.), 412; 92 Ill. 515; 98 U.S. 315; 8 Stew. (N. J.), 376; 33 N.Y. 383; 82 Ala. 596; 60 Miss. 329; 56 Miss. 216; 65 Mo. 439; 35 N.J.Eq. 376; 7 Allen, 397; 55 Md. 301; Farwell on Powers, 156, par. 26, 157, 211, 212.

Mere inadequacy of price, unconnected with fraud, would not vitiate the sale. 47 Ark. 518; DeG. & J., 535.

Joseph M. Hill for appellee.

The deed from Dell to Lanigan operated only as an assigment of the mortgage, and not as an execution of the power of sale, and Lanigan took not the fee simple, but only a mortgage estate in the property. Reviews the authorities cited by appellants' counsel, and cites to support his contention: 49 Mo. 124; 13 Gray (Mass.), 506; 14 Pick. 374; 43 Mich. 45; 64 Pa. St., 349; 3 Johns. Ch., 551; Kent's Com., vol. 4, p. 334; 51 Me. 121; 12 Wis. 639; 14 Wis. 213; 18 Pa. St., 265; 9 Iowa 163; 15 Pick. (Mass.), 82; 14 N.W. (Minn. case), 889; 56 Miss. 753; 55 Mo. 473; 53 Mo. 147; 17 A. 164; Perry on Trusts (4th ed. 1889), secs. 511b and 511c; Washburne on Real Property, sec. 333, star page 326; Jones on Mortgages, secs. 812, 1678 and 1902; 1 Sugden on Powers, 432.

The legal, proper and regular manner of assigning a morgage is by deed. 22 Tex. 478; 7 Blackf. (Ind.), 210; 12 Gray (Mass.), 53; 15 Mass. 233; 51 Me. 121; Jones, Mortg., sec. 787.

OPINION

HEMINGWAY, J.

This is a bill on the part of the plaintiffs, as the heirs at law of Pat Sweany, to redeem lands mortgaged by him in his life-time, and which it is alleged the appellees hold as assignees of the mortgage. The appellees allege that they acquired the land by purchase under the power of sale contained in the mortgage, and deny that they hold as mortgagees.

The mortgage was executed to Harriet A. Cabell as security for a note payable to her order eight months after date thereof; and it contained the provision, that if default should be made in the payment of the note, "the said Harriet A. Cabell, her executors, administrators or assigns, should have power to sell the premises either at public or at private sale, and convey the same to the purchaser in fee simple absolute."

The mortgagor died, and the note was not paid. Subsequently Harriet Cabell assigned the mortgage and note to one V. Dell, entering the assignment of the mortgage on the copy of it in the office of the recorder of deeds. Dell held the mortgage and note until October 4, 1879; on that day he executed a deed of conveyance in usual form with covenants of seisin and warranty of title, purporting to convey the land to the defendant, Ed Lanigan, for the consideration of $ 100.00. This deed contained no reference to the mortgage or the power of sale therein contained; and it does not appear that the note was assigned or delivered to Lanigan.

The effect of that deed is the only question for our consideration; the plaintiffs contend that its only effect was to convey Dell's interest as a mortgagee, while the appellees contend that it was an execution of the power of sale in the mortgage, and passed the title formerly held by Pat Sweany.

The question must be determined by the intent of the parties, to be ascertained from the contents of the deed and the relations of the grantor to the property affected. 1 Sugden on Powers, *p. 421.

The instrument itself is unambiguous, and manifests an intent on the part of the grantor to convey a perfect estate in fee simple absolute. Now, in view of the relation of the grantor to the land conveyed, is the deed consistent with any other intent?

It is not the usual, direct or simple means of assigning a note secured by mortgage; that such an instrument executed by one who had a lien, but not an estate, in the land might be construed as transferring the lien, is true; but this effect would be given, because it could not operate to convey an estate, and it would be presumed that the grantor intended his act to be effective. Still, this is a result reached by construction and not as the usual and natural significance of the thing done.

If it be said that the grantor intended to convey his legal estate as mortgagee, the difficulty is met that the legal estate was not in the grantor. It had been conveyed by deed to Harriet Cabell and there rested, but that instrument vested the power in Harriet Cabell, her executors, administrators or assigns to convey the land in fee simple. So, if Dell intended to pass the legal estate, he could do so under the power in the mortgage; but could he do so by virtue of his interest as the assignee of the mortgage? Although it is well settled that the assignment carried to the assignee the right to the security, which he might enforce, it is equally well settled that he cannot convey a legal title in the lands simply by virtue of his interest, for the reason that he had none to convey. The assignment contained no words of grant, and was lacking in the essential elements of a conveyance to pass legal title. Cottrell v. Adams, 2 Biss. 351, 6 F. Cas. 624; Edgerton v. Young, 43 Ill. 464; Jordon v. Cheney, 74 Me. 359; Williams v. Teachey, 85 N.C. 402; Warden v. Adams, 15 Mass. 233; Adams v. Parker, 12 Gray 53; 1 Jones on Mortgages, sec. 787.

Whether a conveyance containing no reference to a power should be construed as an execution of the power, or as a conveyance of the grantor's estate, has been often submitted to the courts in this country and in England. The rule which controls courts in such cases is now well established and clearly defined, and...