Rawson v. Plaisted

• Decision Date: 26 February 1890
• Parties: RAWSON v. PLAISTED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 71

23 N.E. 722

RAWSON v. PLAISTED.

Supreme Judicial Court of Massachusetts, Worcester.

February 26, 1890

COUNSEL

Verry &amp Gaskill, for demandant.

Wm. A Gile, for tenant.

OPINION

HOLMES, J.

This is a writ of entry. The demandant clams title under a sale on execution of the land as belonging to William L. Plaisted. At the time of the attachment and of the execution sale the land stood in the name of Caroline A. Plaisted, the tenant. The land had belonged to William, was conveyed by him to his brother John by a deed absolute in form, and at a later date was conveyed by John to the tenant.

There was evidence, and the jury found, that the conveyance to John was by way of security only, and that the tenant knew that fact when she took her deed. The court instructed the jury that, under those circumstances, the conveyance to her would operate only as an assignment of the mortgage, but refused to add that, under the pleadings, the demandant would be entitled to recover. The demandant excepted to the refusal, but we are of opinion that it was correct. The equitable right of a debtor to redeem from an absolute conveyance, made in good faith, but by way of security, cannot be taken on execution, unless the land is held "on a trust for him, whereby he is entitled to a present conveyance," within Pub.St. c. 172, § 1; Russell v. Lewis, 2 Pick. 508; Bresnihan v Sheehan, 125 Mass. 11. Of course, the debtor is not entitled to a present conveyance of the land until he pays his debt. If it should be suggested that he has a right to a present conveyance of the equity of redemption, supposing that that would be sufficient,--a question which we do not consider,--the answer is that, in this case at least, when the conveyance was deliberately given in the absolute form, the chance of the grantor being able to redeem being little more than a mere hope; when future advances were contemplated of an amount not definitely fixed; when they had been made to an extent, according to all the evidence, nearly equal to the value of the estate, and, according to some witnesses, much in excess of the value,--the only right of the debtor is to pay his debt, if he can, and then to have a reconveyance. He cannot vary the form of the security while it stands as security. See Campbell v. Dearborn, 109 Mass. 130, 137, 142, 143. There was evidence, to be sure, that the conveyance to John was fraudulent, and, if the fact had been so, that might have raised a different question. But the jury have found that it was not, and the instruction requested was not made conditional upon the existence of fraud. Taking a deed in absolute form as security is not necessary fraud as matter of law. Harrison v. Academy, 12 Mass. 456, 462, Insurance Co. v. Chandler, 16 Mass. 274, 279; Parkman v. Welch, 19 Pick. 231, 235.

The fourth instruction requested was that, if the deed from William to John was given as security for advances, the fact that it was absolute in form would be some evidence of fraud especially if William was deeply indebted at the...